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Contents
Administrative Law
Agency
Antitrust
Appellate
Procedure
Arbitration
Attorney Fees,
Costs
Attorney
Practice
Banking, Commercial Paper
Bankruptcy
Bench
Judgments
Civil
Procedure
Commerce
Conservatorship
Constitutional
Law
Contracts
Corporations
Courts
Crime,
Crim. Procedure
Developmental Disabilities
Discrimination
Elections
Employees
Evidence, Civil
Evidence,
Criminal
Family
Law
Federal Government
Guardianship
Homeowners Association
Indians
Insurance
Landlord/Tenant
LLC
Local
Government
Medicaid
Mental
Commitment
Oil/Gas
Partnerships
Probate
Property
Railroads
Schools
Settlements
Social Security
State
Government
Taxes
Torts
Trademarks
Trusts
Unions
University
System
Utilities
Verdicts
Water
Workers'
Compensation |
Administrative Law
Judicial review:
(acknowledgment of judicial review petition satisfied Rule 5, answer not
required, arguments at hearing properly limited to grounds in protest
letters, DOR properly allowed to participate in judicial review)
Protests to Transfer of
Ownership of Beer/Wine License, Montana Lil's Casino (formerly Buffalo
Bob's), Forsythe et al v. Great Falls Holdings, 11/29:3
Rule making: (Challenge to
DNRC "rule making'' by letter as to "place of storage'' of water mooted
by formal rule) Serena Vista
v. DNRC, 3/15:5
Agency
Agency: (no agency
relationship between cattle buyer and Defendant that wired money for
purchase) Semenza v. Kniss,
8/9:3
Antitrust
Exclusive radiology contract:
(sufficient allegations to support claims of intent to harm competition,
actual injury to competition, antitrust injury sufficiently alleged,
motion to dismiss denied)
Capital Radiology v. St. Peter's Hospital, 3/15:7
Appellate
Procedure
Appealability: (appeal from
"injunction'' denial dismissed for lack of record, insurer sought
injunction to bar evidence/argument of bad faith "post-filing'' conduct,
when Judge Neill ruled morning of trial that it would be admitted,
assertedly requiring counsel to withdraw and testify as fact witness)
Procopio v. Allstate Ins.,
2/23:5; (appeal/cross-appeal of property dispute order by Haynes with
partition/sale hearing yet to occur premature)
LeFeber v. Johnson,
4/12:3; (inadequate 54(b) certification by Lumpus)
Kleinke (European Motors) v.
Walsten, 4/12:3; (appeal timely within 60 days of entry of
judgment (as opposed to signing of judgment))
State v. Clark, 4/19:5;
(standing issue properly raised first time on appeal, sanctions not
appealable at this stage)
Johnson v. Booth, 5/24:1; (appeal of Todd's order reversing LED
billboard application denial mooted by LED rulemaking, dismissed on motion
of Appellant MDT, appeal of bad faith sanctions against MDT not moot,
appeal sanctions denied)
Lamar v. MDT, 7/12:4; (appeal not permitted from contempt order,
motion to convert to petition for cert denied... cert application
premature) Matter of Watkins
Revocable Trust, 8/16:4; (theory shift on appeal not significant
enough to decline appeal)
Becker v. Rosebud Operating Services, 8/23:2; (briefing ordered on
first impression questions of appealability of order dismissing an action
without prejudice) Farmers
Union Mutual Ins. v. Bodell, 9/6:3; (contempt order not reviewable
on appeal, petition for rehearing of prior dismissal not appropriate to
buy time to hire lawyer)
Collins v. Swinger, 9/13:3; (inappropriate to bring into appeal
facts/arguments as to their post-judgment boundary adjustment)
Micklon v. Dudley, 10/4:1;
(dismissal without prejudice interlocutory, not appealable, may not be
subject of 60(b) motion (1st impression), insurance appeal dismissed)
Farmers Union Mutual Ins. v.
Bodell, 11/1:1
Appeal from justice court:
(even if MUMCRA, not MRCivP, governs appeal from justice court of
dismissal of traffic control/DUI case for State's failure to file response
brief, MUMCRA 15 provides many ways to decide appeal, new trial (as
requested by State) is only one, Old Fashion Baptist focuses on
issues, not remedies, inapplicable here, no motion for reconsideration
under MRCivP, motion not treated as Rule 59 motion as State's
(questionable) explanation for not filing response brief not newly
discovered evidence, merely 2nd bite of apple)
State v. Jorgensen,
7/19:6; (State had right to appeal Justice Court grant of motion to
suppress) Willis, 8/30:4
Appeal from municipal court:
(assuming that misdemeanor Defendant could be lawfully sentenced in
absentia, initial oral sentence valid, not subsequent sentence when
Defendant appeared on bench warrant, appeal to District Court untimely)
Clark, 9/20:4
Appeal time: (30-day appeal
time of MRAP supersedes 10-day appeal time of §85-7-1810 for irrigation
districts, motions to dismiss "untimely'' appeal denied)
Formation of East Bench
Irrigation Dist., 6/21:4
Bond: (appeal bond improperly
included Appellee's anticipated attorney fees on appeal, supervisory
control granted) Snavely v.
Larson, 11/22:5
Briefing: (claim of failure to base decree on "formal settlement''
following repudiated in-court settlement not supported as required by MRAP)
Marriage of Petryszak,
1/12:3; (appeal brief 1 day late not cause for dismissal)
Paull v. Park Co., 4/19:1;
(amicus briefs not contemplated by Supreme Court original proceedings
rule) MR v. Swandal, 5/3:3;
(new citations in Plaintiff's reply brief allowed, with Defendant allowed
to file supplemental response, whether to allow new annual leave figures
to be decided in opinion)
Tuttle v. MHP, 8/2:4; (subject jurisdiction issue raised in
response brief not reviewable)
Clouse v. Lewis & Clark Co., 8/16:3; (overlength brief
allowed, but not as long as requested)
Crosley, 8/23:6;
(appeal briefing allowed to proceed as to Petitioner with unchallenged
standing despite challenge as to standing of association)
Citizens for Responsible Development v. Sanders Co. Commissioners,
9/13:2
Certification: (inadequate)
Kleinke (European Motors) v.
Walsten, 4/12:3; (certification of estate dispute proper where
served/named defendants dismissed on basis of procedural defect as to
proper PR) Adorno v. 131 S.
Higgins (The Wilma Bldg.), 4/19:1; (Rule 54(b) v. ARM comp
certifications clarified)
Reesor v. State Fund, 7/26:6; (certification by Langton improper
absent ruling on fees, notwithstanding issue of first impression in
summary judgment) Robbins v.
Conklin, 7/26:7; (inadequate)
Marriage of Schanz,
11/15:2
Mediation: (joint motions
welcomed for designation of categories not identified in MRAP 7)
Kuzara v. Musselshell Co.,
4/19:1; (Clerk-appointed mediator confirmed over parties' late
selection) Hanson v. Cedar
Valley Comst., 9/6:3; (costs assessed against attorney for failure
to participate) Monroe (PR
for Josephine Marsden) v. Cancelosi, 11/22:5
Mootness: (appeal of mandamus
requiring recording of re-aggregated parcels mooted by sale of property)
Mills v. Alta Vista Ranch,
6/21:3; (appeal not mooted by sale of property)
Marriage of Gorton,
10/18:1
Notice of appeal: (Fax filing of notice of
appeal not effective, hard copy filing 1 day late, appeal dismissed with
prejudice, unidentified "Intervenor's'' separate argument in opposition
to motion to dismiss not considered for failure to file notice of appeal)
Reedal v. Reedal, 5/24:2
Out-of-time appeal: (based on
sending notice to District Court denied)
Mountain West Bank v. Western
Skys, 2/23:5; (death of attorney's mother not "extraordinary circumstances''
justifying out-of-time appeal) Estate of Lightfield, 3/15:6;
(motion for fees filed after notice of appeal timely, Deschamps retains
jurisdiction to consider it, motion to dismiss appeal denied, because
neither party served notice of entry of judgment, 10 days of 59(g) has not
begun to run, costs not ``necessary'' as contemplated in MRAP 4(1)(a) in
light of untimely filing of bill, request for costs has no bearing on
finality of judgment) Estate
of Pruyn v. Axmen Propane, 9/27:2
Pro se: (pro se Appellants
failed to meet relaxed burden)
Metzger v. Polejewski, 8/30:3
Public access: (public access to certain
documents in appeal record precluded, but not
under §53-20-134, which applies only to
district courts)
LS, 5/17:4
Rehearing: (rehearing sought
in prosthetic socket coverage/UTPA case rejected, counsel misrepresented
record, ``familiarization'' by new counsel with case either wholly
inadequate or intentionally hebetudinous, Plaintiffs awarded response
fees/costs as sanctions)
Lorang v. Fortis Ins., 9/20:2
Retroactivity: (for case to
be ``similarly situated'' issue must be raised below, properly preserved
for appeal, unless plain error invoked, application of Goetz/ Hamper
warrantless recording rule not raised below, plain error not invoked,
motion to stay appeal and remand for suppression hearing denied)
State v. Foster-DeBerry,
10/25:5; (application of Goetz/Hamper warrantless recording
rule not raised below, plain error not invoked, motion to stay appeal and
remand for suppression hearing denied)
Foston, 11/15:5
Sanctions: (appeal damages/costs denied in
"close call'')
Knowles v. Lincoln National
Life Ins., 7/19:8
Standard of review: (newly stated de novo review of whether conviction
supported by sufficient evidence not in conflict with traditional
deference to trier of fact) State v. Trujillo), 4/19:2
Stay: (no ``safe harbor'' in
MRAP 4(5)(ii) which would allow appeal to pend until ripe, request to stay
appellate deadlines until this and another case with same parties/issues
becomes ripe denied, appeal dismissed without prejudice)
Burbank v. Brenntag West,
9/13:3
Supervisory control: (no
extraordinary circumstances warranting supervisory control of Swandal in
temporary custody dispute) MR
v. Swandal, 5/10:3; (denied as to denial of summary judgment)
Philipsburg School Dist. v.
Dayton, 5/17:5; (trial vacated pending responses to CA's petition
for supervisory control of McLean on grounds case not in procedural
position to proceed) Van
Valkenburg v. McLean, 10/11:5
Transcript: (court reporter
ordered to file transcript or face contempt)
Roe v. Missoula, 2/2:2;
(not properly submitted via closed stay proceeding, but does not change
outcome in radiologist/hospital dispute, rehearing denied)
St. James Healthcare v. Cole,
3/8:4
Arbitration
Compel: (properly not
compelled following year of participation in litigation)
Signal Perfection Ltd. v.
Blackhawk, 4/12:2; (whether contract with arbitration clause and
disputed interest rate was formed must be determined by the Court rather
than arbitrator) Thompson v.
Lithia of Great Falls, 5/31:3
Attorney
Fees, Costs
Award: fees/costs included in
claimed consequential damages, not awardable post-trial
Petroleum Tank Release
Compensation Board v. Federated Service Ins., 1/12:1; (fees
improperly awarded based on contract for deed when not asserted in
complaint or summary judgment motion, no explanation for alternative basis
of "justice so requires''
Walters v. Luloff, 2/2:1; (fees pursuant to contract properly
based on 40% contingency rather than hourly rate, Stimac factors
properly considered, but recalculation of $358,581 fees necessary to
deduct amount based on wage penalty)
West v. The Club at Spanish
Peaks, 5/31:1; ($277,199.99 fees properly awarded on intertwined
claims pursuant to contract despite no prior arbitration, "fees for
fees'' also proper) Blue Ridge
Homes v. Thein, 6/7:2; ($42,923 fees to Plaintiffs who received
all of Defendant's percentage of 1 water right and all but ``trickle of
water'' more than their offer on other right, statements with ``block
billing'' sufficiently detailed)
Kruer v. Three Creeks Ranch, 9/20:1
Disputes arbitration:
(comments invited on revised rules)
Rules on Arbitration of Fee
Disputes, 8/23:
Attorney
Practice
Bar admission: (failure to timely appear
for admission precludes admission to active status)
Petition of Olson, 8/2:4
Bar dues: ($50 increase
sought, responses invited)
Petition of State Bar for Dues Increase, 11/22:5
Conflict of interest:
(supervisory control of McKittrick denied in challenge of Judge's son
being public defender in Judge's court)
Cascade Co. Attorney v.
McKittrick, 8/2:4
Discipline: (60-day suspension on top of
COP's recommendation of censure in excessive/comingled fee/$1 million
estate dissipation case)
Matter of Engel, 2/9:1; (public censure vacated to allow briefing
on subject jurisdiction over ODC complaint)
3/15:5; (Supreme Court has
jurisdiction to order discipline despite COP dismissal recommendation, 60
days suspension, censure for excessive/commingled fees affirmed)
Matter of Engel, 6/21:1;
(stay of suspension/censure for excessive/commingled fees stayed pending
US Supreme Court cert petition)
Matter of Engel, 8/2:2; (attorney did not violate 8.4(c),
1.5(c), 3.1(a), 3.3, 8.4(d) as alleged by ODC and rejected by COP in
connection with fee splitting dispute with Louisiana firm in $869,990
motorcycle verdict, but did violate 8.1 & 8.4(d) as to representations to
ODC & COP about asserted oral fee agreement with clients... ``aggravating
factor'' of uncharged violation of 1.5(e) not considered in adopting COP's
recommendation of public censure rather than private admonition)
Matter of Oaas, 8/16:2;
(District Court lacks jurisdiction to order disclosure of ODC/COP
disciplinary files, reliance on confidentiality of tendered admission in
RLDE precludes original petition)
Billings Gazette v. COP,
8/23:3
Banking, Commercial Paper
Discharge: (bank auditor's
retaliatory discharge claim under WDA not preempted by National Banking
Act ``at pleasure'' provision)
Fenno v. Mountain West Bank, 8/9:2
Attachment: (secured parties
seeking to repossess after default pursuant to §30-9A-609 must follow
specific procedures in claim & delivery or prejudgment attachment
statutes, claim & delivery statute not strictly complied with, seizure
void) Yellowstone Federal
Credit Union v. Daniels, 4/12:1
Ag lien/UCC: (chemical
supplier's notice of lien given same day to farm satisfied revised
"intent to file'' statute with no specified period, UCC Revised Art. 9
(secured transactions) reconciled with non-possessory ag liens: ag lienors
must satisfy perfection requirements of §30-9A-310 in addition to
perfection requirements of lien statutes to avoid "first in time'' rule
and retain "superpriority'' status granted by local law, local law is law
of state where farm products located, Montana local law because beets in
Montana, not ND where farm corporation based, fertilizer/pesticide liens
properly filed with Secretary of State, also satisfied UCC requirements,
duplicate filing not required, ag lien properly perfected, chemical
creditor's lien on beets continued after they were sold and thus on
proceeds from sale, lien properly enforced through negotiation of dual
payee checks, chemical supplier had right to assign inchoate ag lien
interests to affiliated financer, which was entitled to perfect the lien,
ag lienors had superpriority over bank)
Stockman Bank of Montana v.
AGSCO, 3/8:1
Checks: (checks ambiguous as
to whether company/individual payees intended in alternative, are payable
alternatively, bank not in error in paying to individual,
conversion/negligence claims rejected as to ambiguous checks, 1st
impression in Montana) Cabinet
Works v. Gilson, 3/1:4
Financing statement: (any
perfected security interest by Plaintiff at time it initiated suit lapsed
due to failure to timely file continuation statement, not tolled by
litigation, deemed never to have been perfected)
Thermal Supply v. Big Sky
Beef, 10/25:1
Foreclosure: (loan documents for bed & breakfast not orally modified,
deficiency judgment properly granted in foreclosure of personal residence
that was never used as bed & breakfast, no fiduciary duty by bank despite
friendship of loan officer and debtor) First Security Bank v. Abel,
5/17:2
Livestock repossession: (no damages from
bank's failure to immediately file notice of
satisfaction after sale, even assuming private
right of action or negligence per se, untimely
amendment to add economic advantage
interference properly denied)
Stipe v. FIB
Polson, 7/19:2
Retail installment contract:
(not loan subject to usury law, no subterfuge to avoid usury law in
dealer's 21% interest pre-agreement with paper buyer, usury, civil
conspiracy, implied covenant, deceit, CPA counterclaims time-barred (no
tolling for alleged fraudulent concealment), no basis for class action,
common fund) CitiFinancial
Auto v. Hunt, 1/26:6
Bankruptcy
Discharge: (restitution for
bad checks not barred by Ch. 7 discharge)
State v. McWilliams,
3/29:5
Fraudulent transfer:
(unrecorded quitclaims invalid against Trustee's status as bona fide
purchaser for value, recorded bankruptcy eve quitclaims avoidable under
§547, fraudulent under ND Fraudulent Transfer Act because Debtor was
insolvent before transfer and transfer was to insider, concealed, made
after being sued, of substantially all Debtor's assets, out of proportion
to consideration, 19 jointly owned properties partitioned under Court's
equitable powers) Horob
Livestock, 4/12:7
Bench
Judgments
Age discrimination: (defense,
USPS probationary clerk)
Fritz v. USPS, 11/22:8
Distributor Designation:
($155,525 net (after $24,475 undisputed offset), breach of truck-mounted
sprayer exclusive Montana Distributor Designation)
Frieling's Agricultural
Equipment, 11/1:7
EMT on-call time: (for
benefit of Town, compensable, $350,000 settlement for 2 EMTs following
judgment on liability) Sands
v. West Yellowstone, 11/15:6
HVAC contract:
Ernst v. Winn, 8/9:4
Knock from 4-wheeler by gate
cable: (defense, at least 51% contributory negligence by ranch manager
knocked from 4-wheeler by gate cable which he believed someone had put up
after he had taken it down but with no memory of incident... low
back/bowel/anal fissure)
Green v. Future Challenges, 8/16:6
Medical malpractice:
($622,730, VA hospital malpractice, artery transection during laparoscopy,
FTCA, Utah injury/law, gross award of $1,192,730 reduced by $450,000 Utah
non-economic damages cap)
Lamb v. US, 4/19:7
Snowmobile liability:
($10,767,120 net judgment formally affirmed following Montana Supreme
Court's determination of ordinary negligence as standard of care for FS
trail accident) Oberson (for
Musselman) v. Forest Service, 2/9:7
Wrongful discharge: ($240,000, wrongful
constructive discharge, sales rep forced to resign after already "vast''
territory expanded to "not doable'' size)
Johannsen v. Nike, 1/12:5;
($478,341 for wrongful discharge of debt collector for "excessive
absenteeism'' due to injuries, $22,881 penalty for unpaid bonus, $4,548
prejudgment interest, attorney fees/costs)
Hall v. Ameriquest Recovery
Services, 7/19:5
Civil
Procedure
Abuse of process: (no abuse
of process in seeking indemnification under contract)
Judd v. BNSF, 5/31:3
Amendment: (good cause to
allow Defendant to amend to assert Montana settled party defense after
receiving actual knowledge of settlements (as opposed to mere evidence of
negligence), constitutionality of statute not addressed at this time)
Cristler (PR of Newman) v.
Forest Service, 11/22:7
Choice of law: (Montana law
applied to UIM issues) Estate
of Wamsley v. Nodak Mutual Ins., 2/23:1
Construction lien: (lien surety (subsequently named party) not adverse,
also failed to move for substitution of judge within 10 days of show cause
order, substitution properly denied, arbitration award properly enforced
against surety, surety, although not properly named participant in model
of how not to proceed to judgment against a surety, was afforded adequate
notice/opportunity to present case, attorney fees/costs properly awarded
pursuant to statute for all proceedings related to lien enforcement,
counterclaims dismissed for failure to respond)
Eisenhart v. Puffer,
3/15:4; (judgment as matter of law on lien issue (which nevertheless was
submitted to jury) reversed without opinion on merits)
Crail Creek
Associates v. Olson, 7/5:1
Counterclaim: (parties to show cause why all counter/cross-claims
should not be dismissed without prejudice)
Assurance Co. of America v.
McDonald, 5/31:8
Damages: (3% punitives limit only applicable to accurate net worth
calculation, $41,700 punitives affirmed in light of inadequate financial
statement) Blue Ridge Homes v. Thein, 6/7:2
Deemed denied: (insufficient support for
challenge of ruling that motion to alter/amend
based on new evidence deemed denied)
Meloy
v. Murphy, 4/26:2
Default judgment: (sua sponte
"reissuing'' predecessor judge's default judgment reinstatement not
allowed under MRCivP) ABC
Collectors v. Birnel, 2/9:3; (service on employee of company
sharing building with joint owner Defendant adequate, no due diligence in
moving to set aside even though within Rule 60(b) 60 days, no excusable
neglect for failure to monitor, claim of sharp practice in obtaining
judgment rejected because of failure to monitor, punitives may be
challenged under 60(b)(6), but not first time on appeal, $89,628
compensatory, $100,000 punitives to indoor football team in dispute with
league over "Outlaws'' trademark affirmed)
Montana Professional Sports
v. National Indoor Football League, 3/29:1; (default judgment
properly not set aside based on deemed-denied determination that Defendant
was properly served at new address)
Ford Motor Credit v.
Wellnitz, 9/13:1
Discovery: (leave granted to
file late motion to dismiss untimely disclosure, late-disclosed expert
opinions excluded as discovery sanction)
Northwood Estates v. Wauer,
7/5:6; (Defendant's motions to compel and for sanctions properly
denied, protective order properly granted)
Ernst v. Winn, 8/9:4;
(doctor, hospital, insurers seeking to rescind $1.1 million med-mal
settlement for alleged misrepresentation required to produce
documents/privilege log in underlying suit, fees awarded for invalid
discovery objections) Bozeman
Deaconess Health Services v. Simms, 9/20:4; (bank compelled to
produce maintenance records for drive-in teller site which allegedly was
cause of motorcycle/truck collision, fees/costs awarded as sanctions)
Forsythe v. American Bank,
9/20:5; (supervisory control of Deschamps to order MVA Plaintiff to
disclose medical records for preceding 10 years denied)
Knudsen v. Deschamps,
10/25:3; (supervisory control denied as to order to produce claims
manual) BNSF v. Gustafson,
11/15:2
Dismissal v. summary
judgment: (motion for dismissal rather than summary judgment proper
vehicle when jurisdictional and substantive issues not intertwined)
Nigh v. Forest Service,
3/1:5
Estoppel: (collateral
estoppel not applied to contemporaneous suits)
Estate of Wamsley v. Nodak
Mutual Ins., 2/23:1; (suit against appraiser alleging
overvaluation of RV park dismissed because of Plaintiff's switch in
long-asserted position from Massachusetts Trust to corporation following
ruling against it based on lack of standing as business trust)
Olympic Coast Investments v.
Seipel (Market Research Group), 9/6:6; (intent of failing to list
potential FELA claim in bankruptcy to be resolved as matter of fact in
determining judicial estoppel, improperly resolved on summary judgment)
Dovey v. BNSF, 10/25:1
Execution on judgment: (prior
to final disposition, $69,000 "hold back'' of purchase price obtained
from title company by execution on judgment to be moved from IOLTA to
Clerk pending final disposition, interest on IOLTA to be resolved by
parties and Judge) Crail Creek
Associates v. Olson, 7/5:1
Indemnity: (probable cause
for claim for indemnity from vegetation sprayer for $485,000 settlement by
RR employee who stepped into hole properly resolved for railroad and its
lawyers on summary judgment, no abuse of process in seeking
indemnification under contract, no intentional infliction for exercising
legal right to seek indemnification)
Judd v. BNSF, 5/31:3;
(company and ESOP trustees not entitled to indemnity from ESOP arranger
for $1.5 million settlement of $1,352,250 judgment (plus $360,600 fees)
for the employees resulting from erroneous appraisal of transaction and
breach of fiduciary duties)
Donaldson Bros. Ready Mix v. Phenneger & Morgan, 10/18:7
Injunction: (affirmed,
reversed, modified in radiologist/hospital dispute)
St. James Healthcare v. Cole,
2/16:2, (transcript not properly submitted via closed stay proceeding,
but does not change outcome, rehearing denied)
3/8:4; (appeal from
"injunction'' denial dismissed, insurer sought injunction to bar
evidence/argument of bad faith "post-filing'' conduct, when Judge Neill
ruled morning of trial that it would be admitted, assertedly requiring
counsel to withdraw and testify as fact witness)
Procopio v. Allstate Ins.,
2/23:5; (preliminary injunction against implementation of agreement
between County and developers to resolve federal suit over application
approval delays while emergency zoning regulations in effect properly
denied) Bitterrooters for
Planning v. Ravalli Co. Commissioners, 8/9:4
Instructions: (no error in
dividing pattern instruction into several instructions)
Olson v. Schumaker Trucking
& Excavating Contractors, 11/22:1
Interest: (Plaintiff entitled
to post-judgment interest, not pre-judgment interest)
Petroleum Tank Release
Compensation Board v. Federated Service Ins., 1/12:1
Interpleader: (insurer's
motion to deposit balance of policy limits after settling with some deck
collapse claimants and have the Court preside over remaining claims
rejected as contrary to interpleader principle, interpleader not "bill of
peace,'' cannot be used to avoid consequences of allegedly questionable
settlement practices)
Assurance Co. of America v. McDonald, 5/31:7
Judgment as matter of law:
(properly denied for failure to renew motion within 10 days of judgment)
Blue Ridge Homes v. Thein,
6/7:2
Law of case:
Farrier v. Teachers' Retirement Board, 9/6:2
New trial: (State v. Clark
factors for new trial based on new evidence applied to civil cases, appeal
of school eyesight loss defense verdict remanded for analysis of claim of
newly discovered evidence of teacher's allegedly false testimony)
Larchick v. Diocese of Great
Falls-Billings (Billings Central High School), 6/14:1
Partys: (3rd-party
contribution Defendant dismissed based on comp exclusivity as to CO
exposure Defendant, Plaintiffs allowed to amend to add 3rd-party Defendant
as 1st-party Defendant in "extraordinary'' case)
Alexander v. Bozeman Ford,
4/19:6
Punitives: (punitives may be
challenged under 60(b) (6), but not first time on appeal, $89,628
compensatory, $100,000 punitives to indoor football team in dispute with
league over "Outlaws'' trademark affirmed)
Montana Professional Sports
v. National Indoor Football League, 3/29:1; ($1 million punitives
against golf community developer for cutting trees on private property for
road reduced to $25,000, 3.8 times $6,500 award for conversion of timber,
punitives not allowed as to $350,000 breach of covenant award)
McKay v. Wilderness
Development, 5/24:4
Relation back: (Comp Court
benefits reinstatement not notice of bad faith claim as to support
relation back of amended complaint following discovery of successor
insurer, claim time-barred, no equitable tolling under federal or state
rules) Oens v. Employee
Benefits Ins., 1/12:5;
Alexander v. Bozeman Ford, 4/19:6;
Relief from judgment: (no
abuse in not granting 60(b) relief merely because unopposed extension left
only 7 days to rule) Ford
Motor Credit v. Wellnitz, 9/13:1
Statute of limitations: (emotional distress
Plaintiff failed to bring claim against
3rd-party Defendant within 3-year statute,
statute not tolled by motion to intervene or
relation-back)
Alexander v. Bozeman Ford,
4/19:6
Sanctions: (sanctions could have been
imposed for insurer's late disclosure of
insured's statement but properly denied as
prejudice was minimal)
Schuff v. Jackson,
3/15:1; (sanctions against insurer and counsel
for vexatious/abusive start-of-trial request
for injunction which resulted in aborted bad
faith trial, counsel's need to withdraw if
evidence of litigation conduct admitted not
questioned, but should have been definitively
raised in timely manner)
Procopio v.
Allstate Ins., 3/15:6; (Rule 11/equitable
fees improperly awarded without hearing and
evaluation of Chase factors)
Good
Schools Montana v. Missoula Co. School Dist.,
7/12:4
Service: (service on employee of company sharing building with joint
owner Defendant adequate) Montana Professional Sports v. National
Indoor Football League, 3/29:1; (Rule 6(b) permits enlargement of
time for service of process upon showing of excusable neglect despite 4E's
requirement that summons & complaint ``shall'' be served within 3 years of
suit, excusable neglect not shown, enlargement properly denied)
Pesarik v. Perjessy,
10/11:2
Settled party defense: (good
cause to allow Defendant to amend to assert Montana settled party defense
after receiving actual knowledge of settlements (as opposed to mere
evidence of negligence), constitutionality of statute not addressed at
this time) Cristler (PR of
Newman) v. Forest Service, 11/22:7
Standing: (claims for future
police retirement payments/reimbursements fail injury-in-fact component of
standing, supplemental jurisdiction declaratory judgment declined)
Dillon Police Officers'
Association v. Dillon, 1/26:7
Statute of limitations:
(minority tolling not applicable to med-mal survival/wrongful death
claims... 3-year statute not tolled by ``discovery'' as to cause of son's
death following broken leg... ``failure to disclose'' provision of
§27-2-205(1) applies only to 5-year statute of repose, not 3-year
limitations period) Runstrom
v. Allen, 8/16:1
Stay: (properly denied where
insurer sought to invoke "first to file'' rule to gain advantage in ND)
Estate of Wamsley v. Nodak
Mutual Ins., 2/23:1
Commerce
Loan: (phone company "Aid to
Construction'' agreement not a loan)
Firelight Meadows v. 3 Rivers
Telephone Co-op, 6/21:3
Non-conforming good:
(purchaser had right to reject non-functioning hay unloader, seller failed
to cure, but purchaser failed to hold "with reasonable care,'' seller
properly awarded only $2,822 for missing parts rather than requested
$18,959 price plus interest/fees)
Krause v. Erb, 2/2:1
Conservatorship
Constitutional
Law
Right to know: (Miranda-like
(no talismanic incantation) all that is required to apprise of waiver of
right to information held by agency, PD applicant knowingly waived right
to examine confidential background information)
Lee v. Missoula PD, 6/7:5
Contracts
Adhesion: (lease not contract
of adhesion) Polzin v.
Appleway Equipment Leasing, 8/30:2
Aircraft: (fact issues
preclude summary judgment as to breach of contract and warranty claims in
sale involving nonconforming aircraft and inspection opportunity, tort
claims improperly dismissed as precluded by contract claims, if punitives
claim can survive summary judgment, Plaintiff entitled to discovery of
individual Defendant's finances)
Corporate Air v. Edwards Jet Center, 8/23:1
Auto financing: (whether
contract with arbitration clause and disputed interest rate was formed
must be determined by the Court rather than arbitrator, discovery required
to determine whether financing condition precedent satisfied)
Thompson v. Lithia of Great
Falls, 5/31:3
Breach: (insurer conceded
breach by non-performance, but claim of anticipatory breach properly
rejected because repudiation not absolute & unequivocal)
Lorang v. Fortis Ins.,
7/26:1; (rehearing denied)
9/20:2
House construction: (judgment
as matter of law properly denied for failure to renew motion within 10
days of judgment, $417,000 verdict for defamation from homeowner's letters
to businesses affirmed, improper reference to restraining order de minimis,
jury properly not instructed as to contract ambiguity, State Building
Code, sufficient evidence of breach of contract, 3% punitives limit only
applicable to accurate net worth calculation, $41,700 punitives affirmed
in light of inadequate financial statement, $277,199.99 fees properly
awarded on intertwined claims pursuant to contract despite no prior
arbitration, "fees for fees'' also proper, $605,500 net verdict plus
fees/costs/interest affirmed)
Blue Ridge Homes v. Thein, 6/7:2
Indemnity: (indemnity
provision of agreement invalid for not stating that Symphony Society
agrees to indemnify school district for district's own negligence)
Main v. Bozeman Symphony
Society, 9/6:5
Corporations
Dissolution: (individual
lacks standing on behalf of entities to challenge Macek's redesignation of
custodian as receiver, appeal dismissed for lack of standing)
Johnson v. Booth, 5/24:1
Farm corporation: (Plaintiff
terminated as employee and officer not oppressed shareholder, not divested
of assets as shareholder, no violation of reasonable expectations, no
breach of fiduciary duty, liable for conversion of corporate assets,
appellate argument a change of emphasis, not entirely new theory that
would preclude consideration)
Whitehorn v. Whitehorn Farms, 11/1:2
Courts
Access: (petition seeking clarification/delay of proposed rules denied,
referred to task force) Public Access & Privacy to Court Records
in Montana,
1/19:1; (rules adopted)
6/28:2
Choice of law:
(comity/priority jurisdiction properly subordinated to Montana UM
no-stacking public policy in dismissing insurer's Nevada suit filed week
before insured's Montana suit, Montana anti-stacking law improperly
applied where Nevadan insured under Nevada policy in Montana MVA)
Tenas v. Progressive
Preferred Ins., 11/29:1
Comity: (Montana not required
by comity to defer to ND rulings)
Estate of Wamsley v. Nodak
Mutual Ins., 2/23:1; (comity/priority jurisdiction properly
subordinated to Montana UM no-stacking public policy in dismissing
insurer's Nevada suit filed week before insured's Montana suit, Montana
anti-stacking law improperly applied where Nevadan insured under Nevada
policy in Montana MVA) Tenas
v. Progressive Preferred Ins., 11/29:1
Findings: (judges should make
declarative findings rather than merely recite what witness said)
State v. Ross, 11/15:4
Forum non conveniens: (as to
negligence mooted by resolution of deceased as insured under farm policy)
Modroo v. Nationwide Mutual
Fire Ins., 8/9:1
Full faith & credit: (not
applied to ND declaratory judgments on choice of law and stacking obtained
by insurer taking advantage of Estate allowing extensions to respond to
demands) Estate of Wamsley v.
Nodak Mutual Ins., 2/23:1; (Montanans opposing Georgia default
judgment failed to demonstrate that Georgia court did not fully/fairly
consider jurisdiction)
Genuine Parts v. Rascal's Auto Parts, 9/13:2
Judicial conduct: (proposed
code circulated for comment)
Proposed 2008 Montana Code of Judicial Conduct, 4/26:4; (JSC not a
``court'' over which Supreme Court can exercise supervisory control)
Hicks v. Judicial Standards
Commission, 8/23:3; (JP disqualified, without loss of salary,
pending further order of Supreme Court, for ethics findings by Commission)
Inquiry Concerning
Complaints of Connor v. Hicks, 10/25:3; (homicide Defendant not
prejudiced by Judge's frustration-triggered ``wasting time'' comments
about pace of trial during Defense cross which he later explained were
aimed at Prosecution, mistrial properly denied)
Hixon, 11/8:2
Judicial substitution:
(§3-1-804 only applies to district courts, not lower jurisdiction, but
time from "initiating document'' is 10 consecutive days, not 10
business days, untimely in this case, substitution properly denied,
supervisory control denied)
Huntley v. Phillips, 1/26:1; (lien surety (subsequently named
party) not adverse, also failed to move for substitution within 10 days of
show cause order, substitution properly denied)
Eisenhart v. Puffer, 3/15:4; (Judge had no jurisdiction over
motion other than to determine timeliness, service issues inapplicable,
timely motion improperly denied, supervisory control of Tucker granted)
Mellum v. Tucker, 8/2:3;
(application without filing fee for indigent of no effect, so 2nd
application with fee not ``2nd bite,'' improperly denied, supervisory
control of Phillips granted)
JB v. Phillips, 8/2:3
Judge disqualification:
(former lawyer's habeas challenge of Judge Fagg presiding over client
funds theft case and requesting withdrawal of nolo pleas based on new
evidence following appeal denied)
Holt v. State, 5/10:4
Judgment on pleadings:
(matters outside pleadings not considered in judgment on pleadings,
contention that agreement is loan is not factual allegation that judge
must accept as true in judgment on pleadings, but question of law)
Firelight Meadows v. 3 Rivers
Telephone Co-op, 6/21:3
Jurisdiction: (personal
jurisdiction over ND insurer in $600,000 UIM stacking case)
Estate of Wamsley v. Nodak
Mutual Ins., 2/23:1; (claim against MSP of strict
liability/negligent design/manufacturer/assembly of chair dismissed for
failure to file tort claim despite State's prior acceptance of
jurisdiction) Klotzer v. Town
Pump, 7/5:6; (no agency relationship between cattle buyer and
Defendant that wired money for purchase, no other grounds for personal
jurisdiction over Oklahoma Defendant)
Semenza v. Kniss, 8/9:3;
(personal jurisdiction defense not waived by participating in litigation
and complying with ordered procedures pursuant to FRCivP, insufficient
prima facie showing that Alabama trucking company or Florida contractor
services directed allegedly tortious disability insurance activities at
Montana where insured trucker was residing at time of injury, no showing
that Defendants purposely availed themselves of doing business in Montana,
Defendants dismissed) Germain
v. AIG, 8/9:6; (railroad environmental remediation manager could
be liable to property owners, not fraudulently joined, remanded to State
Court) Anderson v. BNSF,
8/23:6; (railroad's invocation of All Writs Act to enjoin Intervenors
in 1989 consent decree from pursuing environmental restoration damages in
State Court denied as premature)
DEQ v. BNSF, 8/23:7; (comity/priority jurisdiction properly
subordinated to Montana UM no-stacking public policy in dismissing
insurer's Nevada suit filed week before insured's Montana suit, Montana
anti-stacking law improperly applied where Nevadan insured under Nevada
policy in Montana MVA) Tenas
v. Progressive Preferred Ins., 11/29:1
Justice court: (full briefing
required for some claims challenging Commissioners' resolution making
Justice Court a court of record, other claims rejected)
Hernandez v. Yellowstone Co.
Commissioners, 2/23:6; ("abbreviated'' trials frowned upon)
State v. Barron, 3/8:5:
("justice's courts of record'' not unconstitutional)
Hernandez v. Yellowstone Co.
Commissioners, 7/19:3
Removal: (co-defendant not
required to join in removal due to lack of service, status as nominal
party) Knowles v. Lincoln
National Life Ins., 7/19:8
Summary judgment: (properly
granted buyers with inadequate well based on lack of response by sellers
to summary judgment motion (not default)
Walters v. Luloff, 2/2:1
UDCR: (proposed amendments
adopted, rejected) Proposed
Amendments to UDCR, 3/22:3;
9/13:3
Venue: (interpretation of LR
1.11(a)(1) as to proper Montana division for FTCA med-mal case in face of
conflicting rulings reserved for closer to trial)
Henderson-Matthews v. US,
5/17:7; (truck lease forum selection clause valid, lessor properly
opted to change venue from Montana to Washington, lease not contract of
adhesion) Polzin v. Appleway
Equipment Leasing, 8/30:2
Crime,
Criminal Procedure
Accomplice corroboration: (sufficient evidence to corroborate testimony
that Defendant conspired to rob casino, no need to determine whether other
witness was also accomplice) Marler, 2/2:5
Arrest: (warrant valid
despite offense wrongly named as bail violation rather than lab)
Torgeson, 8/30:4
Assault on officer:
Robinson, 2/16:6
Bad checks: (charges based on
post-dated/stopped checks to deferred deposit lender and subcontractor
properly prosecuted and tried, motion for directed verdict properly
denominated motion for dismissal for insufficient evidence, properly
denied, no JNOV in criminal law, judge may modify/change verdict by
finding defendant guilty of lesser included or not guilty, motion for JNOV
or new trial properly denied, challenge of Prosecutor's comments waived by
failure to contemporaneously object, restitution not barred by Ch. 7
discharge) McWilliams,
3/29:5
Burglary: (aggravated,
sufficient circumstantial evidence)
Rosling, 4/5:6
Check solicitation:
McOmber, 1/19:2
Child pornography: (mandatory
5 years for mentally retarded Defendant would be disproportionate to
culpability, violative of 8th-Amendment)
Larson, 6/14:6
Confrontation: (Defendant
forfeited right to confront victim about death threat claim
(forfeiture-by-wrongdoing) when he deliberately killed her)
Sanchez, 2/9:4
Counsel: (11th-hour request
to replace appointed counsel with retained properly denied)
Kramer, 2/9:6;
(Judge reasonably requested "appropriate'' written request from Defendant
before appointing counsel after prior refusals of appointed counsel and
whimsical document requesting appointed counsel, Rios
distinguished, OSPD expected to be more resourceful in resolving
appointment conflicts and working with judges in respectful manner, never
appropriate to toss statute book over bench toward judge, supervisory
control of Johnson denied)
Compton, 3/8:5; (waiver invalid for failure to conduct inquiry
into request to proceed pro se, stand-by counsel not adequate substitute
for counsel, remanded for retrial of postconviction petition)
Halley, 9/13:4;
(hearing required on request to abandon counsel, withdraw guilty pleas)
Hooyboer, 11/8:4
Criminal mischief
accountability: (accountability for trashing of mobile home sufficiently
established by circumstantial & direct evidence)
Maetche, 9/27:3
Deaf interpreters: (cst of
team of interpreters to be borne by County pursuant to statute, not OSPD...
first impression) Alkire v.
Townsend, 8/16:4
Deliberate homicide:
(statements attributable to Defendant not hearsay, statements attributable
to victim and victim's note referencing Defendant's death threat not
admissible under hearsay exceptions but error harmless in light of other
testimony, Defendant forfeited right to confront victim about death threat
claim (forfeiture-by-wrongdoing) when he deliberately killed her,
Prosecutor improperly argued that to find mitigated deliberate homicide
jury had to find Defendant's response to extreme emotional distress
reasonable rather than that reasonable explanation existed for distress,
but comments did not deprive Defendant of fair trial, "lesser included
offense'' language in mitigated deliberate homicide instruction did not
impermissibly allow jury to consider sentencing)
Sanchez, 2/9:4;
(sufficient circumstantial evidence)
Rosling, 4/5:6;
(Defendant properly sentenced to life with no parole for 55 years,
retribution a proper factor, no error in PSI referring to victim as lawyer
and Supreme Court law clerk, "all or nothing'' parole restrictions
rejected) Kirkbride,
5/31:5; Hixon, 11/8:2
Directed verdict: (motion for
directed verdict properly denominated motion for dismissal for
insufficient evidence)
McWilliams, 3/29:5
Disorderly conduct: (obscene/abusive
language, throwing items, yelling, honking
horn excessively, can be found to "disturb
the peace'' when directed solely at officers)
Ashmore, 1/26:4
Double jeopardy: (sufficient
evidence in 1st trial that property worth more than $1,000, no double
jeopardy by re-trial based on inadequate instructions in 1st trial)
Ingram, 3/1:4;
(3rd misdemeanor DUI trial not precluded following 2 mistrials due to
City's failure to redact inadmissible statement from arrest video,
"fundamental fairness'' argument not preserved for appeal)
Mouat, 3/8:4; (not
implicated by "continuance'' of "abbreviated'' Justice Court bench
trial, although "abbreviated'' trials frowned upon, interim appeal of
double jeopardy allowed)
Barron, 3/8:5; (not violated by negligent vehicular assault charge
following DUI conviction from same incident)
Condo, 4/19:3;
(remanded for re-sentencing on double jeopardy (possession and possession
with intent to distribute) as requested by Defendant and concurred in by
State without addressing merits)
Wing, 6/28:2; (precludes JP's ``reconsideration'' of judgment
of acquittal of habitual traffic offender charge for State's failure to
prove notice) Overlease,
10/18:6
Drugs:
Gittens, 2/23:6;
Rosling, 4/5:6;
(probable cause for search based on controlled buy even aside from
informant's questioned reliability, Prosecutor's reference to
acts/evidence outside scope of information cured by cautionary
instruction, counsel's allowing tape containing conversation not admitted
at trial into jury room not prejudicial, remanded for re-sentencing on
double jeopardy (possession and possession with intent to distribute) as
requested by Defendant and concurred in by State without addressing
merits) Wing, 6/28:2
DUI: (no particularized suspicion to
investigate parked vehicle with couple engaged
in "inappropriate'' but not unlawful
behavior, concern about "inappropriate''
behavior not justification for community
caretaker stop, DUI evidence should have been
suppressed)
Graham, 1/5:3;
(sufficient evidence that Defendant in control
of accident vehicle)
Dean, 2/16:6; (felony DUI, prior in
absentia conviction not entered in violation
of right to be present, State's proposed rule
that prior conviction "conclusively valid''
if not challenged on appeal/postconviction not
raised below, not considered on appeal)
Weaver, 3/22:4; (no foundation for
officer's HGN testimony, State failed to prove
harmless error, reversed & remanded for new
trial, rebuttable inference from refusal to
take BAC test constitutional)
Michaud, 3/29:4; (instruction on
rebuttable presumption from refusal to submit
to BAC test proper, 1995 DUI amendments not ex
post facto as to 1992 BAC conviction,
4th-offense DUI affirmed)
Anderson, 4/19:3; (Judge improperly
relied on officer's opinion that Defendant was
under arrest when handcuffed rather than
making independent legal determination,
officer had particularized suspicion that
driver traveling 50 miles wrong side of
Interstate oblivious to traffic and delayed
response to pursuit was DUI even before driver
stopped, probable cause to immediately arrest
for DUI before observing driver or conducting
field tests, driver lawfully under arrest when
asked to take breath test, suspended license
improperly reinstated)
Cybulski, 4/26:5; (university officer
had jurisdiction under statutorily authorized
memoranda of understanding with City/County to
stop driver for running red light off campus,
Close Pursuit Act inapplicable)
Howard, 5/17:5; (Defendant
waived claim that Court should determine
``reasonable'' time between driving and BAC
test for per se DUI by failing to raise by
omnibus hearing and by stipulating to
admission of test, whether 4 hours reasonable
not reached)
Kummerfeldt, 10/11:5; (prior DUI not
shown to be invalid for enhancement to felony)
Kampf, 10/18:6; (jury properly
instructed as to rebuttable permissive
inference from refusal to submit to
physical/breath tests)
Miller, 10/25:6; (general ``lack of
foundation'' objections to Intoxilyzer failed
to preserve specific issues for appeal)
Pol, 11/1:3; (jury properly instructed
on rebuttable presumption from refusal to take
breath test, confrontation right not denied by
limiting patrolman as to breath machine,
burden not shifted by Prosecutor's comments on
rebuttable presumption, evidence of refusal to
take test despite no Miranda not
violative of 5th)
Slade, 11/1:4; (erratic driving
particularized suspicion for stop)
Ross, 11/15:4
Elder fraud: (defense
verdict, alleged elder fraud in connection with alleged larger African
scam, 4 Defendants)
Frandsen, 10/18:8
Embezzlement: (prosecutorial
misconduct claims waived by failure to object, videotape admission
challenge waived by counsel's agreement that it was admissible)
Blome, 2/23:7
Felon in possession of firearms: (new trial based on inadvertent
display of police photo of photo depicting Defendant holding firearms
denied) Ritchie, 3/22:7
Felony murder: (life for accomplice in
stabbing death of Supreme Court law clerk not
cruel/unusual, retribution properly
considered, 55-year parole restriction (as
opposed to all or none) proper)
Rickman,
5/3:3
Game/wild bird possession:
(no error established in refusal to suppress evidence obtained by search
warrant, admission of accomplice wife's testimony, sufficient evidence for
misdemeanor convictions)
Torgerson, 9/13:5
Habeas: (good cause adopted for appointment of counsel for habeas
petitioners, no good cause in challenge of 20 years for kidnap when
information and plea agreement stated maximum of 10 years, sentence not
illegal, habeas denied) Dyer, 4/19:4;
Habitual traffic offender: (double
jeopardy precludes JP's ``reconsideration'' of judgment of acquittal for
State's failure to prove notice, trial de novo also barred because
directed verdict properly granted for failure to prove notice)
Overlease, 10/18:6
Indecent exposure: (prior
exposures properly admitted under Just, failure to object below, no
showing of violation of substantial rights)
Stearns, 10/25:7
Ineffective assistance: (failure to sever sexual assault (touching) and
sexual abuse (child pornography) charges so prejudicial to sexual assault
case as to "seriously undermine'' verdict, trial counsel ineffective in
failing to allege nature of prejudice in motion to sever, appellate
counsel ineffective in raising ineffective assistance of trial counsel)
Yecovenko, 1/5:4; (appellate counsel not ineffective for not raising
other crimes on direct appeal) Adgerson, 1/5:5; (claim
record-based, not amenable to postconviction, but in any event failure to
reiterate at sentencing that prior convictions had been vacated not
ineffective) McLees, 1/19:3; (strategic decision to not challenge
DNA testimony of technician who did not conduct tests, hearsay proper as
excited utterance, medical treatment, reasonable reasons for not
challenging prospective jurors, evidentiary hearing not required on all
claims) Notti, 2/2:3; (counsel not ineffective for relying on
antiquated case with still relevant factors or not challenging plea withdrawal
colloquy) McFarlane, 2/2:4;
(counsel's allowing tape containing conversation not admitted at trial
into jury room not prejudicial)
Wing, 6/28:2; (reasonableness test reaffirmed, circumstances
surrounding evaluation of panelists do not establish that original
assessment was unreasonable, despite second thoughts)
Whitlow, 7/19:4;
Maldonado, 9/6:4;
(claim of ineffective assistance for not submitting psychological report
prior to sentencing not amenable to direct appeal, may be raised in
postconviction petition)
Herman, 10/4:4; (ineffective assistance claims by deliberate
homicide trial and appellate counsel rejected (eliciting belief that
Defendant guilty of another homicide, conflict of interest, failing to
assure presence at judge/foreman discussion))
DuBray, 10/18:3;
(failure to object to Judge's comment on expert's qualifications, failure
to make offer of proof after expert disqualified, not presumptively
prejudicial, not prejudicial)
Hammer, 10/25:5; (although Prosecutor asked leading questions,
question with yes or no answer not a leading question that counsel should
have objected to, failure to object to closing arguments ineffective but
not prejudicial as to warrant reversal)
Lindberg, 11/22:5
JNOV: (no JNOV in criminal
law, judge may modify/change verdict by finding defendant guilty of lesser
included or not guilty)
McWilliams, 3/29:5
Jury: (prospective juror with
conflicted views of presumption of innocence properly not excused for
cause) Robinson, 2/16:6;
(no abuse in limiting voir dire of 12-member panel to 15 minutes each side
in 6-person jury misdemeanor case following extensive voir dire by Judge,
although limits in name of expeditiousness not encouraged)
Michaud, 3/29:4;
(serious questions as to panelist's ability to act without prejudice to
presumption of innocence and right to not testify required dismissal for
cause, remanded for new burglary trial)
Braunreiter, 6/14:4;
(panelist with "unqualified opinion'' improperly not dismissed for cause,
$77,410 condo verdict reversed, issue of supplemental verdict form after
jury returned initial verdict not resolved)
Crail Creek Associates v.
Olson, 7/5:1; (extraneous information cured by cautionary
instruction, no prejudice in light of overwhelming evidence of deliberate
homicide guilt) White,
7/12:5; (erroneous instruction not law of case)
Azure, 7/19:3; (UDCR
amended to reflect law providing for jurors to be selected from lists of
drivers and ID holders as well as voters)
Amendments to the UDCR,
8/23:4; (failure to appear at jury confirmation hearing after presence
ordered constituted ``default of appearance,'' waiver of right to jury,
bench trial misdemeanor DUI conviction affirmed)
Cox, 11/15:3
Kidnap: (aggravated,
sufficient circumstantial evidence, distinct factual bases for deliberate
homicide and kidnap) Rosling,
4/5:6
Lesser included: ("lesser
included offense'' language in mitigated deliberate homicide instruction
did not impermissibly allow jury to consider sentencing)
Sanchez, 2/9:4
Mental evaluation: (properly
ordered in response to claim of lack of capacity to consent to drug
search, supervisory control denied)
McKeever, 11/15:5
Miranda:
(adequate evidence of Miranda warning/ rights waiver despite
failure of patrol car audio recorder and no written waiver)
Gittens, 2/23:6
MIP: (officer properly
allowed to testify as HGN expert)
Harris, 8/30:6
Mitigated deliberate
homicide: (Prosecutor improperly argued that to find mitigated deliberate
homicide jury had to find Defendant's response to extreme emotional
distress reasonable rather than that reasonable explanation existed for
distress, but comments did not deprive Defendant of fair trial)
Sanchez, 2/9:4
Parole: (alcohol/gambling
conditions for forgery prisoner within Board's authority)
Bliss, 5/10:4; (Sex
program requirement within Board's statutory authority, not ex post facto)
Brown, 5/17:6
PFMA: (long-past relationship
covered by §45-5-206, conviction affirmed)
Dunn, 8/30:6;
(sufficient evidence that victim suffered physical pain or impairment)
Tuomala, 10/4:3
Plea bargain: (plea agreement
existed but limited to key terms, not all terms in ``Acknowledgment,''
Alford plea to deliberate homicide knowing/voluntary)
Maldonado, 9/6:4;
(breached by State calling its own sex offender evaluator who recommended
higher level than Defendant's as provided in agreement, Defendant entitled
to hold State to agreement of 20 years, not 30 years recommended based on
its evaluator, State not allowed to make ``miscarriage of justice''
argument on remand via its evaluator's improper recommendation, remanded
for resentencing by different judge)
Rahn, 11/1:5
Plea withdrawal: (voluntary)
McFarlane, 2/2:4;
(challenge to $85 assessment for Community Service Program reviewed on
merits despite State's concession, plea withdrawal based on contention
that $85 fine not contemplated by plea agreement properly denied, $85 fine
illegal, stricken)
Stephenson, 4/12:3; (former lawyer's habeas challenge of Judge
Fagg presiding over client funds theft case and requesting withdrawal of
nolo pleas based on new evidence following appeal denied)
Holt, 5/10:4;
(Defendant induced to enter agreement based on illegal 10-year DOC
commitment, good cause for withdrawal)
Deserly, 7/19:4;
(hearing required on request to abandon counsel, withdraw guilty pleas)
Hooyboer, 11/8:4
Police stop: (particularized
suspicion to stop pedestrian suspected of stealing truck)
Adams, 2/9:6
Postconviction relief: (failure to sever sexual assault (touching) and
sexual abuse (child pornography) charges so prejudicial to sexual assault
case as to "seriously undermine'' verdict, trial counsel ineffective in
failing to allege nature of prejudice in motion to sever, appellate
counsel ineffective in raising ineffective assistance of trial counsel,
sexual assault conviction reversed, remanded for retrial)
Yecovenko,
1/5:4; (other crimes issue barred for failure to raise on direct appeal,
not amenable to plain error review, appellate counsel not ineffective for
not raising other crimes on direct appeal)
Adgerson, 1/5:5;
(1-year ``jurisdictional'' bar recast as ``time prescription'' that can be
equitably tolled) Davis,
8/23:5; (new trial not warranted based on post-trial letter from
detective asking Defendant to tell ``real story'')
DuBray, 10/18:3
Prosecutorial misconduct:
(challenge of Prosecutor's comments waived by failure to contemporaneously
object) McWilliams,
3/29:5; (Prosecutor's reference to acts/evidence outside scope of
information cured by cautionary instruction)
Wing, 6/28:2;
(mistrial properly denied as to Prosecutor's assertions of Defendant's and
psychologist's ``trickery'' of accuser, urging jury to ``send a message'')
Longfellow, 10/18:4;
(Prosecutor's unobjected characterization of witness as liar and reference
to failure to call witnesses to refute accusers' rapped, but insufficient
for plain error review, although Prosecutor asked leading questions,
question with yes or no answer not a leading question that counsel should
have objected to, failure to object to closing arguments ineffective but
not prejudicial as to warrant reversal)
Lindberg, 11/22:5
Rape: (low IQ accuser
properly found competent to testify, mistrial properly denied as to
Prosecutor's assertions of Defendant's and psychologist's ``trickery'' of
accuser, urging jury to ``send a message'', conviction affirmed)
Longfellow, 10/18:4;
(Prosecutor's unobjected characterization of witness as liar and reference
to failure to call witnesses to refute accusers' rapped, but insufficient
for plain error review, although Prosecutor asked leading questions,
question with yes or no answer not a leading question that counsel should
have objected to, failure to object to closing arguments ineffective but
not prejudicial as to warrant reversal, accuser's alleged lesbian
relationship properly precluded from Defendant's attempt to show motive to
fabricate based on his objection to relationship, convictions affirmed)
Lindberg, 11/22:5
Release pending appeal:
(properly denied) Neil,
11/15:5
Resisting arrest:
Robinson, 2/16:6;
(sufficient evidence that officers at risk of injury during arrest
struggle) Tuomala, 10/4:3
Restitution: (felony
non-support Defendant reasonably notified that he could be required to pay
full amount owed, knowingly pled guilty, restitution order affirmed)
Milligan, 2/23:7;
(restitution for bad checks not barred by Ch. 7 discharge)
McWilliams, 3/29:5;
(restitution obligations not "discharged'' upon discharge of sentences,
DOC authorized to garnish prison wages from current conviction to collect
restitution for discharged sentences)
Brown, 4/19:5;
(Defendant charged with theft for helping drive stolen vehicle to
California not liable for prior damage to vehicle caused by original thief
driving into haystack)
Breeding, 5/17:5
Restraints during trial:
(Defendant improperly shackled during jury trial based on request by
officer and absent justifying facts)
Merrill, 5/3:4
Revocation: (Judge had authority to revoke 5-year suspended DUI
sentence prior to its commencement while Defendant still in suspended part
of 13-month DOC placement, 1983 amendment did not abrogate authority to
revoke on petition filed prior to commencement of suspended sentence,
change of theory on appeal de minimis)
Morrison, 2/2:6; (new
condition of MSP sex treatment for parole eligibility improper under 1999
statute, Defendant properly found to have violated suspended sentence by
having sex with underage girl even though acquitted)
Knudson, 2/16:7;
(sufficient reason based on post-intervention lie even if interventions
improperly considered)
Martinez, 7/19:4; (``without unreasonable delay'' rule adopted for
execution of parole violation warrants, claim of unreasonable delay
reviewable under plain error doctrine, remanded for determination of
whether 26 months in executing arrest warrant on Defendant in custody
constitutes ``unreasonable delay,'' whether Defendant suffered actual
prejudice) West, 10/18:5;
(SRD sentence becomes ``original'' to be imposed upon revocation)
Triplett, 11/15:4
Sentencing: (total sentences
including for persistent offender within statutory parameters)
Robinson, 2/16:6;
(felony non-support Defendant reasonably notified that he could be
required to pay full amount owed, knowingly pled guilty, restitution order
affirmed) Milligan,
2/23:7; (repayment of Defense investigative costs properly ordered as
condition of deferred sentence under 2003 law)
Holland, 3/1:4; (Ommundson
"nexus'' rule expanded to include offender as well as offense, revised
standard for reviewing conditions, alcohol/gambling not proper "stock''
conditions, alcohol restriction not "reasonably related'' to bad check
offense or Defendant with no alcohol problem, gambling restriction proper
to help manage financial irresponsibility even though Defendant has no
gambling history) Ashby,
3/22:3; (life without parole not illegal, Prosecutor's reference to
swastika tattoo not amenable to plain-error review)
Rosling, 4/5:6;
(no-gambling improper probation condition for drugs with intent to sell,
but no-alcohol proper for reducing temptation to use drugs)
Brotherton, 4/19:3;
(no good cause in challenge of 20 years for kidnap when information and
plea agreement stated maximum of 10 years, sentence not illegal, habeas
denied) Dyer, 4/19:4;
(no judicial authority to impose parole conditions notwithstanding Parole
Board rule, all conditions proper on suspended sentence, improper on
parole, except pornography restriction proper on parole as "reasonable
employment prohibition'', suspended sentence properly revoked before
Defendant began serving it)
Burch, 4/19:4; (electronic monitoring time while released on bond
properly not credited)
Greenwood, 4/19:5; (no credit for pre-trial time on house arrest)
Clark, 4/19:5;
(mental impairment exception to mandatory minimum for meth distribution
properly not applied despite eligibility, non-violent offender prison
alternatives not raised below, sufficient reasons in oral pronouncement)
Novak, 5/17:6;
(drug/alcohol/curfew/GED conditions proper for youth sex offender)
DAS, 5/24:3; (life
for accomplice in stabbing death of Supreme Court law clerk not
cruel/unusual, retribution properly considered, 55-year parole restriction
(as opposed to all or none) proper)
Rickman, 5/3:3;
(Defendant properly sentenced to life with no parole for 55 years,
retribution a proper factor, no error in PSI referring to victim as lawyer
and Supreme Court law clerk, "all or nothing'' parole restrictions
rejected) Kirkbride,
5/31:5; (lack of remorse aspect of sentencing not affirmatively tied
to Defendant's actions/statements, remanded for re-sentencing)
Duncan, 7/12:4;
(alleged failure to follow §46-8-114 in ordering payment of appointed
counsel in revocation proceeding objectionable, not illegal, not
reviewable first time on appeal)
Kirkland, 7/19:4; (time served must be credited against DUI
incarceration, not suspended sentence, habeas granted)
McDonald, 8/2:4;
(revoked defendant improperly sentenced to more than original suspended
sentences, sentences exceed DOC limit under 1999 law, habeas granted)
Deardorff, 8/2:4;
(parole restriction by Langton improper in DOC commitment, remanded for
resentencing) Warr,
8/16:5; (Defendant waived ex post facto argument to application of
§46-23-1011 (2001) to impose sex treatment probation condition 22 years
after sentence by not explicitly raising it below)
LaFreniere, 8/23:5;
(alcohol/gambling conditions improper in carved bear theft case, but
drug-testing proper in light of Defendant's background & characteristics)
Lessard, 9/13:6;
(alcohol/drug conditions proper on employer theft Defendant, mental health
counseling improper, random testing proper to monitor drug/alcohol
condition) Greensweight,
9/13:7; (assuming that misdemeanor Defendant could be lawfully
sentenced in absentia, initial oral sentence valid, not subsequent
sentence when Defendant appeared on bench warrant, appeal to District
Court untimely) Clark,
9/20:4; (Judge did not err in not insisting on reviewing report whose
existence was not disclosed until sentencing)
Herman, 10/4:4;
(Defendant erroneously believed that ``the State,'' whether operating in
Hill or Silver Bow Co., would be bound by plea agreement/judgment in
Silver Bow, because promise unenforceable/unfulfilled, Hill revocation
admissions involuntary, Defendant should be allowed to withdraw Hill
guilty plea) Jones,
10/4:4; (alcohol conditions properly imposed on forged prescription
defendant) Teets, 10/4:5;
(alcohol condition properly imposed on drug Defendant)
Deschazo, 10/4:5; (SRD
revised sentence not reviewable by district courts, only by extraordinary
writ in Supreme Court)
Jordan, 10/11:5; (parole conditions improperly imposed, but
harmless error since Defendant not eligible for parole in DOC commitment
followed by suspended sentence)
Kampf, 10/18:6; (habeas denied for 50-year sentence Salvagni
for DUI) Vaughn, 10/25:7;
(restitution improperly imposed without affidavit in lieu of PSI,
Prosecutor breached plea agreement by recommending sentence in excess of
agreement, remanded for resentencing)
Smietanka, 11/1:6;
(Defendant illegally required to pay $85 ``fee'' to community service
program as opposed to ``fine'' per plea bargain)
VanWinkle, 11/1:6; (SRD-ineligible
sentences not to be reviewed by Supreme Court for uniformity, suspended
adult sentence properly imposed on 17-year-old revoked from Youth Court
extended jurisdiction prosecution for negligent homicide, casino/gambling
restriction proper) Hinkle,
11/8:3; (theft Defendant properly subjected to alcohol/drug
conditions) Corbin,
11/8:4; (ban on medical marijuana pursuant to MMA exceeds statutory
authority, as does requirement to obey contrary federal law)
Nelson, 11/15:2;
(Defendant properly not credited for pre-conviction time in other case)
Henderson, 11/15:3;
(review of drugs, scanner, casino, random testing probation conditions
barred by failure to object, no nexus between alcohol condition and theft)
Stiles, 11/29:4
Severance: (failure to sever sexual assault (touching) and sexual abuse
(child pornography) charges so prejudicial to sexual assault case as to
"seriously undermine'' verdict) Yecovenko, 1/5:4;
(Community Service Program "fine'' illegal, stricken)
Stephenson, 4/12:3;
(Alcohol/intoxicants/casinos/gambling conditions sufficient nexus to meth
conviction) Winkel,
7/12:6
Sex offender designation:
(challenge not amenable to supervisory control)
Hirt, 4/19:5
Sex offender registration:
(failure to register)
Robinson, 2/16:6
Sexual abuse: (child pornography)
Yecovenko, 1/5:4
Sexual assault: (touching)
Yecovenko, 1/5:4;
(destroyed comforter (and inability to test for DNA) not grounds for
dismissing charges as to one girl, charges as to 3 girls properly not
severed, continuance properly denied, sufficient evidence of sexual
assault, lack of remorse aspect of sentencing not affirmatively tied to
Defendant's actions/statements, remanded for re-sentencing)
Duncan, 7/12:4;
(sufficient evidence of sexual assault of child despite acquittal of
attempted rape, therapist's statement validity assessment properly
admitted, Daubert-related arguments rejected)
Bomar, 8/30:3; (acts
from prior conviction properly admitted, sufficient evidence to convict of
assault of ``pretend'' sleeper)
Swenson, 9/13:4; (habeas not available to Defendant who has
exhausted remedy of appeal to challenge conviction based on equal
protection vis-à-vis failure to also prosecute ``consenting'' victim)
Nauman, 9/27:4;
(Prosecutor's unobjected characterization of witness as liar and reference
to failure to call witnesses to refute accusers' rapped, but insufficient
for plain error review, although Prosecutor asked leading questions,
question with yes or no answer not a leading question that counsel should
have objected to, failure to object to closing arguments ineffective but
not prejudicial as to warrant reversal, accuser's alleged lesbian
relationship properly precluded from Defendant's attempt to show motive to
fabricate based on his objection to relationship, convictions affirmed)
Lindberg, 11/22:5
Speedy trial: (remanded for analysis of speedy trial claim under
Ariegwe) Smith, 1/26:3;
(remanded for analysis under Ariegwe)
Madplume, 2/23:8;
(remanded for analysis under Ariegwe)
Howard, 5/17:5;
(remanded for consideration of Ariegwe)
Scofield, 6/7:6;
(felony DUI Defendant unduly prejudiced by 278-day delay largely caused by
officer in military training, properly dismissed)
Billman, 9/27:3
Stay of trial: (granted in
DUI case on State's claim that arresting officer needs 2 weeks to arrange
for return from Iraq)
Spaulding, 2/16:8
Suspended driver's license:
(suspended license remains suspended until driver pays
fees/fines/penalties, driver may be charged with driving while suspended
even after license would have expired)
Bessette, 11/8:4
Tampering: (sufficient
circumstantial evidence)
Rosling, 4/5:6
Theft: (sticker
switching/refund schemes properly prosecuted as unauthorized control)
Meeks, 2/16:7;
(sufficient evidence in 1st trial that property worth more than $1,000, no
double jeopardy by re-trial based on inadequate instructions in 1st trial)
Ingram, 3/1:4
Traffic stop: (particularized
suspicion to stop woman in parked truck in front of drug probationer's
house who turned out to also be probationer)
Thomas, 6/21:5;
(sufficient suspicion to stop vehicle suspected in remote cabin burglaries)
Flemings, 7/5:4;
(sufficient suspicion for investigative stop of suspected drug dealer
based on ``rubber-necking'' at officer at location known for drug deals
relayed to officer who was familiar with suspect's reputation and observed
erratic driving) McMaster,
8/30:5; (anonymous 911 call of speeding/ passing vehicle insufficient
basis for stop, statements/evidence underlying charges of drug
user/firearm/domestic violence suppressed)
Falcon, 9/6:7
Trespass: (main access points
to private property on other side of ridge effective notice against
4-wheelers, hunter responsible for knowing about postings and on legal
notice of them, knowingly entered private property, statement of neighbor
that he could enter as long as he did not pass gate no excuse, hunter
violated Plum Creek's "open lands'' policy by 4-wheeling on roads not
open to public or by driving off-road)
Trujillo, 4/19:2
Vehicle insurance:
(owner/passenger had no obligation to produce insurance proof)
Farmer, 10/25:6
Vehicle stop: (particularized
suspicion to stop woman in parked truck in front of drug probationer's
house who turned out to also be probationer)
Thomas, 6/21:5;
(sufficient suspicion to stop vehicle suspected in remote cabin
burglaries) Flemings 7/5:4;
(sufficient suspicion for investigative stop of suspected drug dealer
based on ``rubber-necking'' at officer at location known for drug deals
relayed to officer who was familiar with suspect's reputation and observed
erratic driving) McMaster,
8/30:5; (anonymous 911 call of speeding/passing vehicle insufficient
basis for stop, statements/evidence underlying charges of drug
user/firearm/domestic violence suppressed)
Falcon, 9/6:7;
(Defendant failed to preserve right to appeal denial of motion to suppress
drug evidence obtained in tail lights stop)
Kelsch, 11/1:7
Vehicular homicide/assault: (general
``lack of foundation'' objections to Intoxilyzer failed to preserve
specific issues for appeal, no error to refuse to instruct on difference
between civil and criminal negligence, testimony as to extent of victims'
injuries in addition to stipulation to serious injury properly allowed,
convictions in truck/motorcycle death/injury affirmed)
Pol, 11/1:3
Violent offender
registration: (duty triggered upon release from "confinement,'' not
"confinement and supervision,'' erroneous jury instruction not law
of case, sufficient evidence to convict)
Azure, 7/19:3
Youth: (challenge of
application of Youth Court Act to 9-year-old not amenable to supervisory
control) GM, 9/27:3;
(suspended adult sentence properly imposed on 17-year-old revoked from
Youth Court extended jurisdiction prosecution for negligent homicide,
casino/gambling restriction proper)
Hinkle, 11/8:3;
(erroneous certification of child pornography charges against juvenile as
``crime of violence'' may not be re-certified under proper basis following
trial, dismissed with prejudice)
SCP, 11/8:7
Developmental Disabilities
Commitment: (public access to certain
documents in appeal record precluded, but not
under §53-20-134, which applies only to
district courts)
LS, 5/17:4
Discrimination
Age: (Court unable to
determine on post-trial motion constitutionality of statutory age
limitation for firefighters absent presentation of BFOQ fact question to
jury, which found Plaintiff not unlawfully denied employment because of
age) Jaksha v. Butte-Silver
Bow Co., 7/12:6
Discrimination v. torts: (low
IQ employee's tort claims of non-consensual sex against employer
restaurant/supervisor not barred by HRA exclusivity, "gravamen'' of
complaint depends on nature of alleged conduct, not technical
format/procedure, determination of whether "gravamen'' sexual harassment
or criminal assault for the Court, sexual assault claim properly
denominated "battery'', respondeat superior not free-standing claim, fact
issues preclude summary judgment as to ability to consent to sex,
allegations of non-consensual sex sound in tort, not discrimination,
summary judgment proper for employer as to discrimination claim, premature
to determine whether employer liable for $500,000 consent judgment against
supervisor) Saucier by Mallory
v. McDonald's Restaurants of Montana, 3/1:1
Jury: (Plaintiff has right to
jury on ADA/Title VII claims since she seeks compensatory (emotional
distress) and punitive damages (although no punitives against County),
Saucier distinguished)
Brenneman v. Gallatin Co., 10/25:8
Marital: ($30,409 back pay
properly awarded to property manager fired because of wife's performance)
Mercer (Union Square
Apartments) v. McGee, 11/22:4
Procedure: (stipulation
required to extend 12-month deadline under 2005 HRA)
Indian Health Board of
Billings v. HRC, 2/23:6
Sex: (quid pro quo harassment
by insurance agent who made continued employment contingent on resumption
of affair, $30,155 lost wages and emotional distress)
Williams v. Lowther Ins.
Agency, 2/16:1; (sex/retaliation, $335,000 for 2 housekeepers who
objected to nude massage/masturbation of employer, semen DNA evidence,
default of Defendants) Lock
v. Portlock Corp., 5/10:6
WDA exclusivity: (WDA claim
not dependent on establishing discrimination, not precluded by HRA
exclusivity) Vettel-Becker v.
Deaconess Billings Clinic, 2/16:2
Elections
Employees
Employee/contractor:
(Insurance agent/PFC independent contractor, not entitled to reimbursement
for expenses) Knowles v.
Lincoln National Life Ins., 7/19:8
Employment agreement:
(agreement ambiguous as to whether resort salesman would be paid trailing
commissions if terminated for cause, properly submitted to jury, lis
pendens on lot improperly filed, summary judgment to salesman proper on
slander of title, negligence, interference with economic advantage,
proposed separation agreement properly admitted under "another purpose''
exception to Rule 408 to show that firing was pretextual, Rule 37 sanction
properly imposed limiting Defendant's ability to dispute Plaintiff's
$464,953 calculation of termination damages (included in $734,046
verdict), sufficient evidence that resort breached agreement to let
salesman buy lot at discount, testimony of realtor as to trailing
commissions properly excluded for failure to disclose as expert, 55% wage
penalty ($255,7198) improperly imposed on commissions due following
termination, fees pursuant to contract properly based on 40% contingency
rather than hourly rate, Stimac factors properly considered, but
recalculation of $358,581 fees necessary to deduct amount based on wage
penalty) West v. The Club at
Spanish Peaks, 5/31:1
ERISA: (Insurance
Commissioner's disapproval of discretionary clauses not preempted)
Standard Ins. v. Morrison,
3/8:8; (UTPA/punitives claim preempted by ERISA... insurer's alleged
failure to advise employer or employee that it was providing ERISA plan
does not meet ``safe harbor'' provision)
ABC Collectors v. Birnel,
8/16:5
Non-compete covenant:
(agreement 4 months after beginning employment unenforceable for lack of
consideration, continuing employment not consideration)
Access Organics v. Hernandez,
1/5:1
Wage claim: (online printing
company's Technical Service Representative awarded $8,680 unpaid overtime
wages, $8,680 liquidated damages under FLSA, award followed employer's
appeal of DLI award of $3,044 overtime wages, no liquidated damages)
Kenney v. PrintingForLess.com
Inc., 5/10:7; (55% wage penalty improperly imposed on commissions
due following termination)
West v. The Club at Spanish Peaks, 5/31:1; (rulings as to
longevity pay for sheriff's deputies and ``repeated violations'' by County
affirmed, increase of HO's 55% penalty to 110% reversed)
Clouse v. Lewis & Clark Co.,
8/16:3; ($5,124 fees proper for work in judicial review which affirmed
DLI award of wages/penalty, Claimant also entitled to fees/costs on
appeal, employer properly denied fees for defending against Claimant's
withdrawn retirement bonus claim)
Talon Plumbing & Heating v.
DLI, 11/22:4
Workforce Drug/Alcohol Act:
(not preempted by FMCSA regulation, RLA)
Marshall v. Frank, 5/3:5
Evidence-Civil
Affidavits: (strict compliance with 56(e), not reviewable for abuse of
discretion, rule adopted for admitting exhibits in affidavits not based on
personal knowledge, RR exhibits as to federal funding improperly
considered in summary judgment for RR on preemption in crossing death
case, summary judgment reversed) Smith v. BNSF, 6/28:1
Experts: (psychiatrist's allocation of
current and preexisting problems in UIM case
precluded as not scientifically sound)
McGreevey v. State Farm Fire & Casualty,
4/5:7; (supervisory control of Sandefur denied
as to restrictions on MVA Defense experts
based on insufficient disclosures, supervisory
control granted and denied as to disclosure of
IME physician incomes)
Bell v. Sandefur,
6/7:1; (Plaintiffs not required to file
26(b)(4) disclosures for treating physicians)
Sims v. State, 7/5:5
Voluminous material: (federal
foundation standard adopted for Rule 1006 (summary of voluminous
material), met in this case over hearsay objection)
Petroleum Tank Release
Compensation Board v. Federated Service Ins., 1/12:1
Evidence-Criminal
Expert: (therapist's
statement validity assessment properly admitted, Daubert-related
arguments rejected) Bomar,
8/30:3
Hearsay: (statements
attributable to Defendant not hearsay, statements attributable to victim
and victim's note referencing Defendant's death threat not admissible
under hearsay exceptions but error harmless in light of other testimony)
Sanchez, 2/9:4
Other crimes: (statements
properly admitted under transaction exception)
Gittens, 2/23:6
Other issue: (barred for failure to raise on direct appeal, not
amenable to plain error review) Adgerson, 1/5:5
Prior consistent statements: (statements
made before alleged motive to fabricate arose,
improperly admitted, but harmless trial error,
check solicitation conviction affirmed)
McOmber, 1/19:2
Search & seizure: (search of Defendant's
residence occupied by probationer who failed
to report address change and failed drug test
justified probationary search where drugs were
found)
Smith, 1/26:3; (exigent
circumstances for warrantless entry including
belief that large quantity of meth was present
(even though it was not) and suspects knew
they were being watched)
Ruggirello,
1/26:3; (sua sponte review of "inevitable
discovery'' doctrine adopted, drug items in
bathroom would have inevitably been discovered
upon return with warrant obtained pursuant to
items observed in bedroom where officers were
lawfully present and Defendant's suspicious
behavior)
Dickinson, 5/24:2; (probable cause for
search based on controlled buy even aside from
informant's questioned reliability)
Wing, 6/28:2; (warrantless wired
monitoring & recording of conversations in
drug stings in Defendants' home and
informant's car violative of Art. II §§ 10 &
11)
Goetz, 8/23:4; (ordinary guest in
apartment had no expectation of privacy in
drug trash left in garbage can, regardless of
whether minor had capacity to consent to
search, difference in semantics insufficient
to prove that application contained false
information, motion to suppress properly
denied)
Shelton, 10/4:2; (information outside
of application not improperly considered,
decision in separate case res judicata as to
false application issue, motion to suppress
properly denied)
Shelton, 10/4:3; (warrantless seizure
(towing) of truck during DUI investigation not
improper, shoes inside that connected to
simultaneous murder investigation would have
inevitably been discovered)
Hixon, 11/8:2
Family
Law
Common-law marriage: (claim
rejected) Vig v. Estate of
Hutcheson, 3/1:3
Custody: (mother entitled to
change venue to Yellowstone (her residence) from Gallatin (father's
residence) of custody/parenting plan petition by father filed in
Beaverhead (child's alleged residence)
BCBW, 10/11:3;
(children and parents no longer in Montana, children and father in
California, California has jurisdiction under UCCJEA, Montana judge
obligated to relinquish jurisdiction)
BP, 10/11:4
Maintenance: (maintenance
award unsupported, lifetime maintenance improperly awarded without
consideration of ability to meet needs long-term)
Jackson, 2/16:4;
(maintenance agreement lacked remarriage termination provision,
maintenance terminated by operation of law upon wife's remarriage)
Cortese, 2/16:5
Order of protection: (Justice Court v. District Court jurisdiction,
subject v. personal jurisdiction, right to show cause hearing waived by
stipulation, dismissal of order of protection properly denied in light of
stipulation and 5-year delay in transferring to District Court)
Shoonen
v. Reichle, 2/2:3
Parental interest: (former
same-sex partner awarded interest in minors adopted by partner under
§40-4-228, Plaintiff's experts qualified as to same-sex parentage,
Defendant's expert not, Plaintiff awarded $101,824 based on unjust
enrichment from Defendant taking advantage of Plaintiff)
Kulstad v. Maniaci,
11/15:7
Parental rights: (statutes relating to
termination of rights based on prior
termination of sibling if circumstances have
not changed constitutional (first impression),
termination proper)
AP, 1/19:2;
(termination proper based on prior
terminations as to siblings)
TSB,
2/2:2; (termination proper based on SIWC,
alternative bases not raised in petition moot)
ST, 2/2:2; (erroneous conclusion as
to YINC harmless as termination supported by
overwhelming evidence/repeated stipulations of
parents as to abuse/neglect)
JC, 10/18:2; (no standing by
aunt/uncle to petition for termination,
aunt/uncle to be appointed guardians pending
proper procedures, sanctions denied,
supervisory control of Lympus granted)
JC, 10/25:4
Property: (destroyed bed of
de minimis value, 36 months proper for wife to remove husband from
mortgage) Jackson, 2/16:4;
(appeal not mooted by sale of property, settlement agreement not
unconscionable, doctor opinion as to capacity to contract properly
excluded for failure to disclose, wife had capacity to contract, not
subject to undue influence, contract fees properly denied in action to
determine conscionability of agreement (as opposed to action to enforce))
Gorton, 10/18:1
Settlement agreement: (claim of failure to base decree on
"formal
settlement'' following repudiated in-court settlement not supported as
required by MRAP) Petryszak, 1/12:3;
(property properly split 50/50 following ``de facto separation'' of ``lord
of house'' and ``unseen domestic worker'')
Guill, 8/23:4
Federal Government
VA: (probationary radiologist not entitled to judicial
review of Back Pay Act claim following summary review board discharge)
Weber v. VA, 1/26:7
Guardianship
Homeowners
Association
Disclosure: (member's request for cash receipts recording
dues collections and records of expenditures for last 3 years granted,
Board's denial in good faith, fees/costs denied)
Abbott v. Gallatin River Ranch
Homeowner's Association, 8/9:5
Water/sewer association: (properly prohibited private
irrigation wells) Eastgate
Village Water & Sewer Association v. Davis, 4/26:2
Indians
Insurance
Attorney-client privilege:
(jumbled factual picture stemming from lack of firewall between claim
processing and potential litigation preparation precludes supervisory
control of order by Phillips denying motion for protective order and to
quash subpoena of communications with outside counsel in bad faith case
stemming from air ambulance crash deaths)
American Family Life Assurance
of Columbus v. Phillips, 4/5:1
Attorney fees: ($40,000
incurred to obtain full benefit of $100,000 UIM policy awarded pursuant to
Brewer (denied pursuant to §27-1-813 and Buxbaum), costs
denied) Splain v. State Farm
Mutual Auto Ins., 6/21:7; ($66,668 fees pursuant to Brewer
in invalid UIM release case, burden of establishing reasonableness of fees
not shifted to insurer, properly fell within reasonable range, prejudgment
interest properly awarded under Montana ``debtor/ creditor'' statute,
Lynch's findings & recommendations adopted in full)
Hoffman v. Geico Ins.,
10/4:6; (insured did not waive right to request fees via Rule 54
motion rather than in complaint, UIM insured entitled to fees under
Brewer even though insurer had accepted liability for some of his
injuries but refused to pay policy limits until he sued, questions as to
cause of injuries not bar to fees since insurer denied any further
liability, $25,900 contingency fees proper based on $74,000 settlement
entered shortly before trial, $4,859 hourly fees proper based on $45,413
paid shortly after suit filed, certification of fee questions properly
denied in light of substantive Montana law and delay in requesting
certification until adverse recommendations, Lynch's findings &
recommendations adopted in full)
Riordan v. State Farm Mutual Auto Ins., 10/4:7
Bad faith: (Comp Court
benefits reinstatement not notice of bad faith claim as to support
relation back of amended complaint following discovery of successor
insurer, claim time-barred, no equitable tolling under federal or state
rules) Oens v. Employee
Benefits Ins., 1/12:5; (Ridley claim asserted after insurer
tendered policy limits a UTPA claim disguised as Ridley claim,
insurer's payment and Plaintiffs acceptance constituted "settlement,''
3rd-party UTPA claim time-barred, common law bad faith claim not
time-barred, 3rd-party insured's excess liability and Plaintiff's measure
of damages resulting from insurer's tortious conduct directly related,
Plaintiffs barred by insured's bankruptcy from prosecuting excess judgment
claim against insured, insured waived attorney-client privilege in
deposition in this case and testimony in Bankruptcy Court, Plaintiffs not
required by hypertechnical application of Fode to resolve in
preliminary trial what is in effect nothing more than an issue of bad
faith damages) Mayer v.
Patterson, 3/29:7; (insured which purchased "Executive
Safeguard'' policy with "past acts'' exclusion and falsified application
has unclean hands in breach of contract/bad faith suit following
$1,352,250 ESOP/ERISA judgment, duty to defend moot because insurer paid
fees/costs in underlying litigation, no duty to indemnify since insured
maintained control of litigation and insurer agreed to pay defense
fees/costs under reservation of rights, and issue moot because insurer
defended anyway, Defense Within Limits provision admittedly illegal, but
no damages under policy as written or as reformed, no damages as to issue
of appeal bond which was procured under arbitrated agreement, not policy,
eve-of-trial summary judgment for insurer) Donaldson
Bros. Ready Mix v. Philadelphia Ins. Companies,
5/24:5; (medical/ funeral expenses precluded as element of bad faith,
other bad faith claims to go to jury)
Roebling v. Farmers Ins. Exchange, 6/28:4; (evidence from
settled suit over coverage of prosthetic replacement sockets not precluded
in suit involving same policy and legal theories, parties' prior dealings
admissible as to claims of failure to conduct reasonable investigation,
attempt in good faith to settle, malice, and certain aspects of defense,
not to suggest that insurer liable for pre-settlement conduct, insurer
conceded breach by non-performance, but claim of anticipatory breach
properly rejected because repudiation not absolute & unequivocal,
Plaintiffs entitled to summary judgment on UTPA misrepresentation as to
coverage of prosthetics, investigation unreasonable per se if information
is "forgotten'' by adjuster, good faith attempt to settle not limited to
compromise agreement, fact issues preclude summary judgment as to good
faith settlement attempts, Sacco "serious/severe'' standard not
applicable to UTPA emotional distress claim, measure of damages for jury,
subject jurisdiction vis-à-vis prior Federal Court settlement resolved by
2005 9th Circuit ruling while this appeal pending)
Lorang v. Fortis Ins.,
7/26:1
Breach of contract: (evidence
from settled suit over coverage of prosthetic replacement sockets not
precluded in suit involving same policy and legal theories, insurer
conceded breach by non-performance, but claim of anticipatory breach
properly rejected because repudiation not absolute & unequivocal)
Lorang v. Fortis Ins.,
7/26:1
Coverage: (leaking diesel a
"pollutant'' in standard pollution exclusion clause)
Petroleum Tank Release
Compensation Board v. Federated Service Ins., 1/12:1; (collision
with rollover vehicle 1 minute after rollover constituted 2 accidents for
insurance purposes, request for declaratory judgment on coverage
justiciable even though duty to indemnify insured not determined, fees
awarded to Plaintiff) Buford
v. State Farm Mutual Auto Ins., 1/12:4; (landlord's policy
ambiguous, construed to cover tenant's personal property fire loss)
Lammers v. Allstate Ins.,
2/23:3; (no UM for individual under corporate policy covering
non-occupied vehicles, also precluded by 38-month delay in reporting
claim, summary judgment for insurer on claim for payment of $1 million
default judgment against tortfeasor)
Lee v. Great Divide Ins.,
3/15:3; (fact issues preclude summary judgment as to whether defendant
in suit by injured police officer was prejudiced by insurer's failure to
timely assert defense of uninsured under parents' homeowners policy,
whether insurer was prejudiced by insured's 8-month delay in giving notice
of incident, insurer cannot rely on intentional act exclusion to refuse
defense where injuries suffered while trying to subdue Defendant not
intentional per se, jury could find that Defendant did not intend to
injure, coverage not precluded by illegal act exclusion where jury could
find that officer's injury did not arise from Defendant's illegal act but
by his negligence in failing to consider risk to officer)
Fiscus v. Safeco Ins.,
3/22:5; (non-named officer using non-company truck not covered under
unambiguous corporate auto policy with no human named-insured when struck
by hale bale falling from vehicle)
Progressive Casualty Ins. v.
Owen, 4/12:6; (duty to defend mega-house construction suit
precluded by "business pursuits,'' "intentional acts'' exclusions)
Abbey v. The Chubb Corp.,
4/26:7;
Abbey v. The Chubb Corp.,
4/26:7; (work comp med-pay
offset/exclusion not ambiguous or violative of public policy as to
reasonable expectations/consideration)
Newbury v. State Farm Fire &
Casualty Ins., 5/10:1; (well tubing damaged while being installed
excluded under "care, custody, control'' and definition of "insured''
provisions) Lambert Well
Service v. Wellington Specialty Ins., 6/21:2; (tortfeasor's and
Decedent's policies cover "bodily injury'' under consortium, emotional,
and relationship injuries alleged by Estate, widow, 2 children, aggregate
limits apply to these 4 claimants)
Roebling v. Farmers Ins.
Exchange, 6/28:4; ("bodily injury'' construed to include mental
or psychological injury accompanied by physical manifestations,
Jacobsen overruled, fact issues preclude summary judgment as to
whether injured pedestrian's mother & brother suffered mental injuries
with physical manifestations, policy covers damages insured obligated to
pay because of bodily injury sustained by any person, whether to
claimant directly or another, derivative claims of mother/brother
exhausted by $50,000 "per person'' policy limit settlement with
pedestrian, unless they can establish that their claims also "bodily
injury,'' triggering "each accident'' limits, emotional distress with
physical manifestations must be supported factually)
Allstate Ins. v.
Wagner-Ellsworth, 7/12:1; (farm ``partnership'' policy included
deceased's parents as ``named insureds,'' extending UIM to deceased as
family member, Ohio law properly applied to deny UIM stacking and allow
offsets under personal auto policy, Montana does not have greater interest
that would warrant applying Montana law over Ohio law, but unlikely that
single UIM premium violated public policy against stacking, forum non
conveniens as to negligence mooted by resolution of deceased as insured
under farm policy) Modroo v.
Nationwide Mutual Fire Ins., 8/9:1; (complaint allegations of
violations of FHA/MHRA in design/construction of housing and discovery
claim of emotional distress not within CGL bodily injury arising from
accident, no duty to defend/ indemnify)
Twite Const. v. Security
National Ins., 9/13:1; (not reasonable to expect based solely on
enrollment form that insured would automatically receive continuous total
disability benefits to age 70 if injured/unable to work as trucker, fact
issues preclude summary judgment as to whether insured was prejudiced and
insurer should be estopped from relying on SSD ``exclusion''/``condition
precedent'' based on alleged failure to timely provide certificate of
insurance, fact issues preclude summary judgment as to Plaintiff's request
to reform policy to reflect terms allegedly represented through agent,
discovery of other buyers of policy compelled)
Germain v. AIG, 9/27:6
Duty to defend: (insurer had
duty to defend family member causing single vehicle accident, estopped
from asserting nonpermissive user, especially after paying insured's
vehicle damages under same policy, insurer obligated to pay $117,330.87
default judgment against driver, fact issues preclude summary judgment
against bad faith claims)
Wagner v. Lincoln General Ins., 6/21:6; (complaint allegations of
violations of FHA/MHRA in design/construction of housing and discovery
claim of emotional distress not within CGL bodily injury arising from
accident, no duty to defend/ indemnify)
Twite Const. v. Security
National Ins., 9/13:1
Duty to potential 3rd-party
claimant: (insurer had duty to potential 3rd-party claimant to preserve
scene of fire and evidence relating to cause of fire, negligent
spoliation/UTPA claims to go to jury, 3rd-party claimants not entitled to
recover from insurer attorney fees incurred in unsuccessful underlying
suit against insured since they could have proceeded with spoliation claim
against insurer without expense of litigation against insured or brought
spoliation claim in litigation against insured)
Coleman Const. v. Diamond
State Ins., 6/14:5
Foreign insurer: (change of
address notice by foreign insurer for purposes of service not required to
be on any particular form) ABC
Collectors v. Birnel, 2/9:3
Intervention: (intervention
by insurer denied on attempt to minimize liability in bad faith action by
challenging $900,000+ consent judgment ($600,000+ net) between scaffold
fall claimant and insured on grounds of fraud or improper collusion)
Boettcher v. Kaste (Steve's
Sports Center), 4/12:4
Jurisdiction: (Personal
jurisdiction over ND insurer in $600,000 UIM stacking case, stay properly
denied where insurer sought to invoke "first to file'' rule to gain
advantage in ND, Montana law applied to UIM issues, "reasonable
expectations'' raised first time on appeal, not considered, full faith &
credit not applied to ND declaratory judgments on choice of law and
stacking obtained by insurer taking advantage of Estate allowing
extensions to respond to demands, collateral estoppel not applied to
contemporaneous suits, Montana not required by comity to defer to ND
rulings) Estate of Wamsley v.
Nodak Mutual Ins., 2/23:1
Notice: (120-hour notice
provision void for failure to be highlighted in policy)
Petroleum Tank Release
Compensation Board v. Federated Service Ins., 1/12:1
Reasonably clear liability:
(liability for injuries in chain MVA reasonably clear (2 impacts v. 1),,
liability for $19,171.11 additional meds as requested to be advanced
reasonably clear (disputed existence of mild traumatic brain and whether
cognitive problems attributable to preexisting conditions), insurer's
request for supervisory control denied as to whether material fact issues
require summary judgment for insurer)
Stiles v. Helming, 7/12:7
Release: (release executed at
time of payment of UIM on 1 of 3 vehicles invalid due to stipulated
damages in excess of available liability and stacked coverages, $66,666.67
attorney fees, prejudgment interest recommended)
Hoffman v. Geico Ins.,
8/2:7
Subrogation: (petroleum tank
board statutorily authorized to seek subrogation)
Petroleum Tank Release
Compensation Board v. Federated Service Ins., 1/12:1; (class
certification appropriate in action to compel collision insurer to make
whole before subrogating against tortfeasor's insurer for amounts paid
pursuant to insured's collision coverage)
Ferguson v. Safeco Ins.,
4/5:1
Suit to recover insured loss:
(filing/denying claim not prerequisite to suing, petroleum leak
subrogation claims barred by 8-year statute for contracts, Capitol
Indemnity reaffirmed)
Petroleum Tank Release Compensation Board v. Federated Service Ins.,
1/12:2; (limitations period for petroleum leak began when claim
accrued/discovered, contrary footnote in Capitol Indemnity
non-binding dicta, claim filed 12 years after discovery of leak barred)
Petroleum Tank Release
Compensation Board v. Empire Fire & Marine Ins., 6/14:2
UM/UIM: (UIM barred by
insured vehicle exclusion in single vehicle death accident, camper trailer
insured under vehicle policy, not "uninsured vehicle'' giving rise to UM,
exclusion of payment for both liability and UIM not violative of public
policy, premium did not pay for actuarial risk for which recovery sought,
declaratory judgment for insurer)
Mountain West Farm Bureau Mutual Ins. v. Flint, 3/1:7;
(modification of UM/UIM coverage to defeat stacking of 7 vehicles in 1
policy ineffective due to inadequate notice, dilatory discovery tactics as
to future lost wages requires new trial on damages, $1,375,292 verdict
($79,577 after prior payment and anti-stacking limitation) reversed)
Robertus v. Farmers Union
Mutual Auto Ins., 6/21:1; (Brewer holding as to insurance
exception applies to 1st-party UIM claim, insured forced to litigate to
obtain full UIM entitled to fees, fees based on lodestar as to UIM paid
before suit filed and between filing of suit and filing of answer, on
contingency as to UIM paid in settlement, fee request properly made in
pre-judgment motion, not required in pleading)
Riordan v. State Farm Mutual
Auto Ins., 6/28:5; (comity/priority jurisdiction properly
subordinated to Montana UM no-stacking public policy in dismissing
insurer's Nevada suit filed week before insured's Montana suit, Montana
anti-stacking law improperly applied where Nevadan insured under Nevada
policy in Montana MVA) Tenas
v. Progressive Preferred Ins., 11/29:1
Landlord/Tenant
Landlord liability: (summary
judgment proper for landlords in bakery restroom hidden camera case,
complaint alleged negligence only as to bakery premises, improper attempt
to extend to adjacent premises)
Meloy v. Murphy, 4/26:1; (city alley where Plaintiff fell on
ice not "common area'' of adjacent apartments under RLTA, City sidewalk
ordinance not applicable to alley, Piedalue/Limberhand not extended
to public alley next to apartments)
Willden v. Neumann,
7/12:3
LLC
Local
Government
Business improvement
district: (properly formed & expanded, no evidence of fraud or mistake
that would preclude City from exercising sound judgment in formation,
claim of taking/lack of benefits to protestors rejected)
Bud-Kal v. Kalispell,
6/28:4
County attorney: (conflict of
interest claims against Civil CA rejected, sanctions imposed against
Plaintiffs under §2-2-144(3), Rule 26(g), appeal, denied against Defendant
under Rule 11) Park Co.
Concerned Citizens v. DePuy, 7/26:3
Police: (claims for future
police retirement payments/reimbursements fail injury-in-fact component of
standing, supplemental jurisdiction declaratory judgment declined)
Dillon Police Officers'
Association v. Dillon, 1/26:7
Subdivisions: (no exemption
for division greater than 160 acres with a "remainder'' of less than 160
acres) Mills v. Alta Vista
Ranch, 6/21:3; (preliminary injunction against implementation of
agreement between County and developers to resolve federal suit over
application approval delays while emergency zoning regulations in effect
properly denied) Bitterrooters
for Planning v. Ravalli Co. Commissioners, 8/9:4
Zoning: (additional findings
necessary to determine whether gravel pit CUP lawful under District's
regulations, reclamation contract must be approved prior to CUP per
regulations, asphalt/concrete use may be prohibited in multi-use area
considered residential by Commissioners)
Flathead Citizens for Quality
Growth v. Flathead Co. Board of Adjustment, 1/12:2; (challenge of
zoning change/subdivision approval moot after auto auction built,
Plaintiff failed to appeal injunction denial or seek stay)
Povsha v. Billings,
1/12:3; (City had no "special duty'' to protect casino neighbors from
alleged nuisance that would give rise to tort liability under "special
relationship'' exception to public duty doctrine)
Prosser v. Kennedy
Enterprises, 3/22:2; (amendment issues mooted by adoption of 2007
Growth Policy) Country
Highlands Homeowners Association v. Flathead Co. Commission, 8/30:2
Medicaid
Eligibility: (DPHHS' "no
corporation, no trust'' rule violates equal protection, post-eligibility
income may be used to pay for prior nursing home costs, countable
resources properly not offset by accumulated expenses)
Timm v. DPHHS, 5/3:3
Mental
Commitment
Deterioration: (mental
condition correctly found "likely to deteriorate'' if untreated,
"imminent'' threat of injury, challenge to "deterioration standard'' not
preserved for appeal) ASB,
4/5:5
Emergency detainment:
(emergency justified detainment, notice of rights day after detainment
satisfied statute/due process)
LK, 5/17:3
Friend of respondent:
(reversible error to appoint mother as "friend'' where she was also
victim in underlying crime which led to commitment petition, "friend''
concurred with lawyer in waiving jury trial)
DV, 1/5:2
Mootness: (challenge not
mooted by release from Warm Springs)
DV, 1/5:2
Oil/Gas
Partnerships
Dissolution: (complex
farm/construction dissolution equitable as possible)
Baltrusch v. Baltrusch,
7/19:3; (rehearing denied)
9/13:4; (member not entitled to share in distribution of $2.5 million
judgment against member)
Wallace v. Hayes, 8/9:3
Probate
Common-law marriage:
(common-law marriage claim rejected, creditor's claim properly rejected)
Vig v. Estate of Hutcheson,
3/1:3
Interest: (PR owes $901,701
interest to $8.5 million marital trust pursuant to §72-3-913 (interest on
general pecuniary devise))
Myhre, 11/29:5
Jurisdiction: (judge sitting
in probate lacks jurisdiction over testamentary trusts which come into
being after estate closed, no jurisdiction over petition by trustee to
remove herself and substitute judge)
Balek v. Haugen, 9/6:1
PR removal: (supervisory
control denied as to Deschamps' expressed intent to appoint independent
PR, recusal request mooted by recusal)
Yuhas v. Deschamps,
10/25:3
Slayer statute: (guilty pleas
to killing children not conclusive that mother acted "feloniously and
intentionally'' barring her from inheriting from children's estates,
husband challenging her inheritance must prove that she acted with intent)
Swanson, 6/28:2
Venue: (Montana venue proper
based on personal property in Montana of Arizona decedent without regard
to whether value "de minimis'')
Strange, 5/17:2
Will challenge: (Montana will
challenge in ancillary proceeding dismissed where decedent determined to
be Texas resident at time of death)
Saylor, 11/8:5
Property
Condemnation: (inverse, jury
improperly precluded from determining total compensation by exclusion of
pre-litigation payment and land transfer, landowner improperly allowed to
testify about value based on properties with different uses and no expert
foundation, award of $94,788 litigation expenses reversed because new
trial ordered, but litigation expenses may be awarded for inverse
condemnation, ``cost to cure'' parking change properly disallowed,
interest from date of verdict, not date of agreement or possession,
property taxes properly not awarded as litigation expense, expert fees on
fees properly denied, $174,833 verdict for casino/ restaurant land taken
for street reversed, remanded for retrial)
K&R Partnership v. Whitefish,
7/5:3; (``customary hourly rates'' in §70-30-306(2) requires
determination of typical/common rates for non-specific attorney's services
in county of trial, jurisprudential factors improperly applied (1st
impression)) MDOT v. American
Bank of Montana, 11/8:1; (condemned fractional mineral interest
was in fee simple, cannot revert to former owner)
Libby Placer Mining v.
Noranda Minerals, 11/15:1
County road: (access part of
1906 county road, also established county road)
Roe Family LLC v. Sarff,
3/8:3
Covenants: (Defendants
properly ordered on remand to remove ``mammoth'' shop/garage on lot
adjoining residence or build residence on shop lot, inappropriate for
Defendants to bring into appeal facts/arguments as to their post-judgment
boundary adjustment combining lots)
Micklon v. Dudley, 10/4:1
Easement: (FQTA not
applicable to BurRec easement on private road, District Court has
jurisdiction over public access claim)
Public Lands Access
Association v. Jones, 1/19:1; (statute of limitations barred by
failure to raise in answer, attempt to amend answer untimely, fact issues
not created by evolving/inconsistent defense, fact of some use of easement
established by deed of restriction, regardless of frequency, defeats
continuous/uninterrupted elements of defense of extinguishment by adverse
possession) Meadow Lake
Estates Homeowners Association v. Shoemaker, 2/16:3; (deed of
inland lot ambiguous as to access across lakefront lot, but lakefront
owner not on notice of alleged easement by inland deed)
Nelson v. Barlow, 3/8:3;
(public road not reserved across placer by reference to 1892 mining
survey) Our Lady of the
Rockies v. Peterson, 4/5:3; (prescriptive easement on road around
house, no easement by exchange to use property for irrigation purposes)
Knutson v. Schroeder,
4/26:3; (easement appurtenant not adequately described for
easement-by-reference since identities of dominant & servient tenements
cannot be ascertained with reasonable certainty from COS)
Blazer v. Wall, 8/9:2
Ownership: (Defendants waived
right to challenge verdict form for not differentiating between ownership
of truck and tools in it under estate law, co-defendant who kept truck and
reported it stolen by Plaintiff properly not dismissed, Defendants waived
statute of limitations by not raising in answer, Plaintiff's verdict
affirmed) Turk v. Turk,
2/23:4
Real estate sale: (leave
granted to file late motion to dismiss untimely disclosure, late-disclosed
expert opinions excluded as discovery sanction, resulting in summary
judgment exclusion of amounts for diminution of value, lost development
profits, and lost construction profits (totaling $2,104,200) from damage
calculation in suit over undisclosed covenants limiting planned 10-lot
subdivision to 6 lots, lost profits claim also rejected as hopelessly
speculative, fact issues preclude summary judgment as to whether buyer's
agent had duty to disclose contents of covenants)
Northwood Estates v. Wauer,
7/5:6; (hearsay affidavits, photos, emails as to removal of
encroachments properly excluded, summary judgment properly granted that
encroachments removed, absence of utility easements for condo units not
adverse to title, Buyers in breach of contract for failing to close)
Apple Park LLC v. Apple Park
Condos LLC and Saunders, 8/23:2
Reverse condemnation: (claims
against State officials stemming from I-137 barred by 11th Amendment)
Seven Up Pete Venture v.
Schweitzer, 5/3:7
Road abandonment: (abutting
owners held fee simple title to half of 30' former public roadway upon
1919 abandonment, not pre-abandonment 80')
Knutson v. Schroeder,
4/26:3
Tax deed: (notice received
within statutory period although mailed outside period, minor name
variation not mistaken identity, tax deed valid)
Boomer Oil & Gas v. Surwill,
3/1:3; (life estate converted to fee simple by tax deed)
Collier v. Kincheloe,
3/29:3; (void for failure to mail notice in addition to publication,
mail notice in prior abandoned attempt of no effect)
Showell v. Brosten, 8/2:1;
default properly not set aside against purported buyer/occupant)
Legal Resources Agency v.
Armstrong, 8/2:1
Title: (life estate converted
to fee simple by tax deed)
Collier v. Kincheloe, 3/29:3
Railroads
Crossing liability: (Shanklin
RR crossing federal funding preemption analysis not overruled by 9/11 Act,
strict compliance with 56(e), not reviewable for abuse of discretion, rule
adopted for admitting exhibits in affidavits not based on personal
knowledge, RR exhibits as to federal funding improperly considered in
summary judgment for RR on preemption in crossing death case, summary
judgment reversed) Smith v.
BNSF, 6/28:1
Interchange agreement: (no
likelihood of success of challenge of shortline interchange agreement's
termination/arbitration clauses, TRO not necessary to prevent irreparable
injury, TRO/ preliminary injunction denied)
Central Montana Rail v. BNSF,
3/8:7
Schools
Building sale: (challenge of building sale barred by
failure to exhaust remedies under controversy statute/ rules including
appeal to county superintendent within 30 days of Trustees' decision)
Good Schools Missoula v.
Missoula Co. School Dist., 7/12:4
Teachers' Retirement: (retired local teacher drawing
pension while working full-time at university properly ordered to repay
$84,829 plus interest under law of case, res judicata)
Farrier v. Teachers'
Retirement Board, 9/6:2
Transfers: (District required by statute and CBA to
bargain as to involuntary teacher transfers/reassignments (first
impression)) Bonner School
Dist. v. BEA, 1/19:1
Settlements
Discrimination: ($330,000, alleged disability
discrimination/retaliation by CFSD, paraplegic mother)
Glass v. DPHHS,
5/17:8; ($42,500, affirmative relief, claimed discrimination against
shoplifting suspect by officer on basis of race (Indian) in governmental
services) Little v. Cut Bank
PD, 9/20:8; ($62,500, race/sex discrimination, Caucasian principal
candidate at Indian school)
Hickok v. Pryor School Dist., 11/29:8
Insurance bad faith: (mid-trial dismissal
by Plaintiff of 1st/3rd-party claims with
prejudice with no attorney fees/costs to
Defendants)
Hanson v. State Farm Mutual
Auto Ins., 5/31:6
Newborn oxygen deprivation: (mid-trial,
medical malpractice, brain)
Jaeger v. St.
Vincent Health Care, 5/31:7
Railroad: (mid-trial,
railroad brakeman/engineer, spine)
Barnett v. BNSF, 8/2:6;
(mid-trial, railroad conductor)
Lockard v. BNSF, 8/2:6
UM/UIM illusory coverage: Sherrill v. Progressive Northwestern Ins.,
5/10:5
Social Security
Child's SSI: (improperly
denied) Leeper, 5/17:7
State
Government
Beer/wine license:
(acknowledgment of judicial review petition satisfied Rule 5, answer not
required, arguments at hearing properly limited to grounds in protest
letters, DOR properly allowed to participate in judicial review, premature
to consider award of fees before DOR has made final decision on remand for
hearing on merits after summary judgment by DOR reversed in judicial
review for improper judicial notice of another application, operation
allowed pending final approval of application)
Protests to Transfer of
Ownership of Beer/Wine License, Montana Lil's Casino (formerly Buffalo
Bob's), Forsythe et al v. Great Falls Holdings, 11/29:3
Board of Medical Examiners:
(Board not entitled to quasi-judicial immunity for actions in granting
temporary conditional and then permanent unrestricted licenses to doctor
who had been revoked in California for unprofessional conduct, but Board
owed no duty of care to patient who died of aneurysm under public duty
doctrine exception, negligent credentialing claim properly dismissed)
Nelson v. State, 10/11:1
FWP: (prohibition against influencing political actions applies only in
partisan political sense, not legislative lobbying)
Montana Sports
Shooting Association v. FWP, 6/14:3
Liquor license: (resort all-beverages
transfer properly denied)
The Mountain
Monkey, 5/17:4
MANG firefighters: (transfer of firefighters hired after 1/1/01 from PERS to FURS not violative of equal protection) Bean v. MPERA,
3/15:5
Petroleum Tank Release Fund:
(2001 law requiring 24-hour notice properly applied to 2002 leak rather
than 2003 amendment eliminating notice period, amendment not retroactive)
Town Pump v. Petroleum Tank
Release Compensation Board, 1/26:1
PSC: (challenge of order
untimely, statutes not tolled)
Molnar v. PSC, 2/23:6
Stream Access: (Mitchell
Slough is natural, perennial-flowing stream under 310 Law, ``natural water
body'' for purposes of Stream Access Law, subject to public recreation,
conservation district's process for determining status of slough
fundamentally fair, Plaintiffs properly required to prove that slough is
natural water body by ``preponderance of the evidence'', Mizner reversed
as to judgment, affirmed as to procedural rulings)
Bitterrroot River Protective Association v. Bitterroot Conservation
Dist., 11/22:3
Taxes
Corporate: (interest on
outstanding taxes following amended extension return reporting additional
income should be calculated from when refund issued rather than original
return due date in equitable application of statute under unique
circumstances, 6-month safe harbor tolled during 84 days company caused
processing to be delayed, company not entitled to interest on refund)
US West v. DOR, 4/26:4;
(limitation period not tolled, but DOR assessment timely within 5 years of
9th Circuit decision affirming IRS changes in taxable income under 1995
MCA) Frontier Chevrolet v.
DOR, 6/21:4
Property: (Treasurer has no
obligation to tax condo units separately, summary judgment for Treasurer
and assignee of tax lien, DOR dismissed due to failure to pay taxes under
protest or file notice within 90 days of tax due notice)
St. Marie Development v.
Valley Co. Treasurer, 9/27:4
Torts
§1983: (officers not
insulated by qualified immunity for plainly incompetent or knowing
violations of 1st Amendment rights in retaliation/harassment case,
judgment on pleadings denied)
Romero v. Yellowstone Co. Sheriff's Office, 6/21:8
Abuse of process: (fact
issues as to ulterior motive, filing without valid claim, preclude summary
judgment as to abuse of process)
Seipel v. Olympic Coast Investments, 7/12:2; (claims against
insurer and its lawyers in handling UIM claim not dismissed for failure to
state claim) Procopio v.
Allstate Ins., 9/20:6
Defamation: ($417,000 verdict
for defamation from homeowner's letters to businesses affirmed)
Blue Ridge Homes v. Thein,
6/7:2
Dram Shop Act: (alcohol
provision negligence derives from common law, not created by statute, 2000
3-year limitations applicable, not 2 years for liability created by
statute, suit timely filed)
Filip v. Jordan, 7/12:3
FTCA: (failure to provide sum
certain for MVA claim within 2 years jurisdictionally fatal, not satisfied
by submission of medical bills, claimant not barred from seeking more in
subsequent legal action based on new evidence, US not estopped by claim
that agency failed to inform Claimant that claim still incomplete after he
provided medical bills) Nigh
v. Forest Service, 3/1:5; (Government firefighters' actions in
setting backfires that destroyed property protected by discretionary
function exception) Backfire
2000 v. US, 5/3:7
Horse bite: (strict liability
for abnormally dangerous animal correctly rejected, although inappropriate
case to adopt Restatement of Torts §509, trespassing animal
statutes not extended to non-trespassing horse that bit Plaintiff,
contributory negligence by Plaintiff improperly found to relieve Defendant
of legal duty, but summary judgment for Defendant on negligence claim
still proper due to lack of evidence that biting horse not in reasonably
safe condition) Peterson v.
Eichhorn, 7/19:1
Intentional infliction of
emotional distress: (no intentional infliction for exercising legal right
to seek indemnification) Judd
v. BNSF, 5/31:3
Malicious prosecution:
(summary judgment for malicious prosecution Defendants (investment company
and counsel) precluded by fact issue as to whether termination of
underlying action reflected on the merits and favorable to Plaintiff)
Seipel v. Olympic Coast
Investments, 7/12:2
Medical malpractice:
(minority tolling not applicable to survival/wrongful death claims...
3-year statute not tolled by ``discovery'' as to cause of son's death
following broken leg... ``failure to disclose'' provision of §27-2-205(1)
applies only to 5-year statute of repose, not 3-year limitations period)
Runstrom v. Allen, 8/16:1;
Misrepresentation: (water
well flow) Walters v. Luloff,
2/2:1
Negligence: (Boat/rocks
collision defense verdict affirmed following 2nd trial, summary judgment/JNOV
on negligence properly denied, jury properly instructed on duty of care of
boat operators, experts properly allowed to testify that safest way to
navigate channel with hidden rocks is "on plane'', sanctions could have
been imposed for insurer's late disclosure of insured's statement but
properly denied as prejudice was minimal, curative instruction for
comments as to Defendant's intent properly denied)
Schuff v. Jackson, 3/15:1; (no prejudice to ski operator by
amendment by snowboard competition jump builder to allege settled injured
skier's comparative negligence because jury did not consider skier's
negligence, sufficient evidence that builder not negligent, defense
verdict in $1 million contribution suit by ski operator against jump
builder affirmed) Marshall
Mountain v. Board of Missoula, 3/22:1; (patrolman crushed against
patrol car by semi while investigating accident in blizzard a foreseeable
plaintiff as to semi driver, who owed common law/statutory duties of care
to patrolman as licensed driver and patrolman, whether driver breached
duties to be considered by jury on remand, injury not unforeseeable as
matter of law, foreseeability/causation must be determined by jury
considering proximity to injury of driver's alleged negligence, whether
tow truck was independent intervening cause)
Fisher v. Swift
Transportation, 4/5:2; (property owner had duty to provide safe
workplace for trenching employee since trenching an inherently dangerous
activity, but no duty based on nondelegable contractual duty or control
over work, no negligence per se, engineer did not have duty to provide
safe workplace based on agency or statute)
Countryman v. Homelands
Development, 5/31:5; (evidence of 3 prior injuries properly
excluded for lack of connection to injuries from MVA at issue, credibility
issue for failing to initially disclose past medical information to
doctors abandoned below, not considered on appeal, orthopedist's comments
about brain injury properly excluded, continuance due to last-minute
disclosures not adequately requested, summary of medicals properly
admitted without foundation by doctors, Plaintiff competent to testify as
to injuries and expenses, $361,684 verdict affirmed)
McCormack v. Andres, 6/7:3;
(Shanklin RR crossing federal funding preemption analysis not
overruled by 9/11 Act, strict compliance with 56(e), not reviewable for
abuse of discretion, rule adopted for admitting exhibits in affidavits not
based on personal knowledge, RR exhibits as to federal funding improperly
considered in summary judgment for RR on preemption in crossing death
case, summary judgment reversed)
Smith v. BNSF, 6/28:1; (sidewalk death Defendants precluded
from evidence/argument as to alleged negligence of non-party assisted
living home) Sims v. State,
7/5:5; (comparative negligence inapplicable where Defendant has
nondelegable duty to provide safe workplace for inherently dangerous
activity) Countryman v.
Homelands Development, 8/16:5; (sufficient evidence to apportion
MVA liability 40% to Plaintiff based on failure to look laterally ahead
pursuant to unchallenged instruction, allegedly false/accusatory
statements by juror not ``extraneous prejudicial information'' sufficient
for new trial following $315,600 net intersection verdict)
Fish v. Harris, 8/30:1;
(Symphony Society had no duty to maintain handrails on stairs of School
District's auditorium, but had duty to provide adequate lighting and
demarcate steps, indemnity provision of agreement between Society and
District invalid for not stating that Symphony agrees to indemnify
District for District's own negligence)
Main v. Bozeman Symphony
Society, 9/6:5; (jury properly instructed as to contractor's
negligence by reciting contract and undisputed factual findings as to foot
crush of worker riding in loader bucket, alleged preexisting psychological
condition properly excluded for Defendant's failure to apportion claimed
accident PTSD, failure to object to alleged hearsay at deposition
precludes review on appeal despite pre-trial objection, no error in
dividing pattern instruction into several instructions, jury properly
instructed that contractor's safety duties included transportation to job,
contributory negligence properly allowed despite nondelegable duty under
Safety Act, $940,295.16 net (90/10) verdict for RR construction
subcontractor employee affirmed)
Olsen v. Shumaker Trucking &
Excavation Contractors, 11/22:1
Negligent spoliation:
(insurer had duty to potential 3rd-party claimant to preserve scene of
fire and evidence relating to cause of fire, negligent spoliation/UTPA
claims to go to jury, 3rd-party claimants not entitled to recover from
insurer attorney fees incurred in unsuccessful underlying suit against
insured since they could have proceeded with spoliation claim against
insurer without expense of litigation against insured or brought
spoliation claim in litigation against insured)
Coleman Const. v. Diamond
State Ins., 6/14:5
Nuisance: (neighbors properly
granted summary judgment in abatement suit involving 200 animals)
Metzger v. Polejewski,
8/30:3
Parental consortium:
("severity of injury'' an issue of law, father's head injury not severe
enough, relationship with daughters not destroyed, to support consortium
claim, daughters' claims improperly brought by them rather than guardian)
Countryman v. Homelands
Development, 1/26:5
Product liability: (new trial
denied following $10,397,491 verdict for infant safety seat death,
evidence of compliance with frontal impact test standard not admissible,
pre-trial orders properly enforced to limit expert testimony following
breach of promise not to take advantage of continuance/backup for
ill/deceased expert, no revision of $6,697,491 compensatory award, no JNOV
for alleged juror exposure to extraneous evidence, Defendant's post-trial
motions denied) Malcolm v.
Evenflo, 1/19:4
Respondeat superior: (well
driller who drove crew from site to motel then to bars not in course &
scope when in MVA 5 hours after shift)
Bowyer v. Loftus, 10/4:1
Snowmobile liability:
($10,767,120 net judgment formally affirmed following Montana Supreme
Court's determination of ordinary negligence as standard of care for FS
trail accident) Oberson (for
Musselman) v. Forest Service, 2/9:7
Tort claim: (claim against
MSP of strict liability/negligent design/manufacturer/assembly of chair
dismissed for failure to file tort claim despite State's prior acceptance
of jurisdiction) Klotzer v.
Town Pump, 7/5:6
Wrongful discharge: ($20,000
verdict, $47,000 fees/costs, discharge for refusing to quit to avoid
cancer insurance costs)
Harding v. Garcia, 2/9:4; (WDA claim not dependent on establishing
discrimination, not precluded by HRA exclusivity, summary judgment on WDA
claim precluded by fact issues)
Vettel-Becker v. Deaconess Billings Clinic, 2/16:2;
(insufficient evidence that purported reorganization was pretext for
terminating street supervisor, summary judgment for City)
Lawler v. Columbia Falls,
3/22:5; (jury properly instructed as to handbook following amendment
to conform to evidence, sufficient evidence to support award for lost
wages, $60,000 verdict for constructively discharged body shop employee
affirmed) Hager v. JC
Billion, 5/17:1; (PO's due process/negligent investigation claims
properly dismissed for failure to exhaust CBA remedies, deceit/NIED claims
not covered by CBA, improperly dismissed, no requirement in CBA for
arbitrator to decide whether grievance is arbitrable)
Klein v. DOC, 6/7:5;
(unconditional offer to reinstate employee as resort HR manager at same
salary retroactively to discharge bars WDA damages under Title VII
rationale, misrepresentation/ breach of covenant of good faith claims
intertwined with discharge claim, preempted by WDA, Plaintiff failed to
file statement of genuine issues, Defendants failed to authenticate
summary judgment materials)
Kibbee v. The Resort at Paws Up, 6/28:7; (claims by prospective
president of new bank fall under WDA as contract conditions of bank
approval not met, claim time-barred)
Zier v. Hancock, 7/26:5;
(bank auditor's retaliatory discharge claim under WDA not preempted by
National Banking Act ``at pleasure'' provision)
Fenno v. Mountain West Bank,
8/9:2; (cursing supervisors good cause for termination, no evidence of
pretext for union activities or broken machine)
Becker v. Rosebud Operating
Services, 8/23:3
Trademarks
Trusts
Accounting: (Judge correctly
determined that newly discovered evidence warranted new trial of
accounting despite relying on jury verdict rule, trust beneficiaries
entitled to notice of entry of judgment in trust proceedings (1st
impression), 10 days for moving for new trial tolled for 11 years because
notice not given, statute of limitations/laches to be resolved on remand,
accounting order not final until appeal, new trial not in conflict with
final trust order conclusiveness, further proceedings required as to
bank's alleged breach of "prudent man rule'')
Trust B under Last Will of
Dunham, 5/3:1
Charitable trust: (agreement
required creation of museum, Board of Advisors (but not Trust) breached
fiduciary duties by closing museum, museum to be re-opened under new
Board, AG properly allowed to intervene as matter of right, immaterial
whether friends of museum properly allowed to intervene)
Bair Family Trust, 5/10:2
Investment allocation:
(pursuant to prudent man rule bank trustee should have invested $1
million+ trust 65% in stocks, 35% in fixed income investments from 1974 on
(Plaintiffs seeking $30 million+ for failure to invest in stocks over 30
years)) Matter of Trust B
under Last Will of Dunham, 11/29:5
Unions
Discharge: (PO's due
process/negligent investigation claims properly dismissed for failure to
exhaust CBA remedies, deceit/NIED claims not covered by CBA, improperly
dismissed, no requirement in CBA for arbitrator to decide whether
grievance is arbitrable) Klein
v. DOC, 6/7:5
University
System
Utilities
Verdicts
Age discrimination:
($60,047.93 past wages for age discrimination (but no retaliation), no
wrongful discharge, environmental engineer, $126,520 fees, $12,785.95
costs, cross-motions for JNOV/new trial denied)
Reick v. MSE Technology
Applications, 11/29:6
Assault: (alleged butt kick)
Fahland v. Evergreen Pharmaceutical,
4/26:7
Auto: ($612,976.91 against 2 Defendants,
rollover crash, 65% apportionment to phantom
motorist, $214,542 net judgment, soft-tissue
neck/occipital neuralgia/chronic
headaches/depression)
Lucke v. Myers,
4/12:5; ($5,331,525.60, head-on auto,
traumatic brain, UIM/bad faith)
Chilcote v.
Fireman's Fund Ins., 4/12:7; ($460,500,
chain auto collision, admitted liability,
neck/back) Luschenat v. Jones, 5/24:5;
(rear-end, brain/neck/back)
McCormack v.
Andres, 6/7:4; (defense, disputed rear-end
auto (Plaintiff claimed collision and damage,
Defendant claimed no collision, preexisting
damage), neck/back)
St. Pierre v. Dobbs,
6/28:5; (liability for injuries in chain MVA
reasonably clear (2 impacts v. 1),, liability
for $19,171.11 additional meds as requested to
be advanced reasonably clear (disputed
existence of mild traumatic brain and whether
cognitive problems attributable to preexisting
conditions), insurer's request for supervisory
control denied as to whether material fact
issues require summary judgment for insurer)
Stiles v. Helming, 7/12:7;
(sufficient evidence to apportion MVA
liability 40% to Plaintiff based on failure to
look laterally ahead pursuant to unchallenged
instruction, allegedly false/accusatory
statements by juror not ``extraneous
prejudicial information'' sufficient for new
trial following $315,600 net intersection
verdict)
Fish v. Harris, 8/30:1; ($250,000 net
(50/50) for pain/suffering & mental/emotional
distress, SUV/semi rear-ender, back/ brain,
re-trial on pain/emotional distress following
previous $130,887 verdict for medicals/earning
capacity)
Hoffman v. Austin, 9/6:6; (defense,
rear-end auto, mild traumatic
brain/cognitive/neck/back/knee/dental/depression,
disputed preexisting conditions, admitted
liability)
Clark v. Bell, 10/11:7; ($2,505,000,
high-speed left-turn auto, 2 deaths, mild
brain/fractured sternum/hip/wrist)
Messick v. Patrol Helicopters, 11/1:7;
(defense, auto/highway construction area
(bumps, no chip seal/rumble strips), wrongful
death)
Johnson v. Riverside Contracting, 11/8:6
Bottle rocket: (defense,
bottle rocket injury to eye, negligence/negligence per se but no
causation, bottle rockets abnormally dangerous but not cause of injury)
Currall v. Saxon, 10/11:7
Business park covenants:
(alleged surreptitious) C-J
Land & Livestock v. Bottrell Family Investments, 8/30:7
Common area maintenance:
Macerich
Rimrock v. Blackhawk, 6/21:8
Condo contract/construction lien:
Crail
Creek Associates v. Olson, 7/5:1
Construction: ($940,295.16
net (90/10) verdict for RR construction subcontractor employee affirmed)
Olsen v. Shumaker Trucking &
Excavation Contractors, 11/22:1
Copyright: ($287,375, infringement of
copyright in photo of BMX bike rider by
photo-based image on diapers)
Wizard
Publications v. Kimberly-Clark, 3/22:6 Deck collapse: ($750,000 against building owner, 0 against bar, bar
deck collapse, elbow/pelvis/spine fractures)
Boyce v. Diamond
Horseshoe,
2/2:7; ($683,962.51, 95%
negligence by building owner, 5% by City, shoulder)
Funke v. Estate of Shultz,
5/3:5
Defamation: ($3.8 million,
on-air defamation by radio station owner as to owners of land surrounding
tower with disputed easement for tower radials, summary judgment on
liability) Gardner v. Stokes,
9/27:4
Diesel leak: (petroleum tank board
statutorily authorized to seek subrogation,
leaking diesel a "pollutant'' in standard
pollution exclusion clause, 120-hour notice
provision void for failure to be highlighted
in policy, federal foundation standard adopted
for Rule 1006 (summary of voluminous
material), met in this case over hearsay
objection, $25,318 verdict for administrative
expenses affirmed, fees/costs included in
claimed consequential damages, not awardable
post-trial, Board entitled to post-judgment
interest, not pre-judgment interest)
Petroleum Tank Release Compensation Board v.
Federated Service Ins.,
1/12:1
Elder abuse: ($120,518.80
against casino & operators for gambling losses by Alzheimer's Plaintiff's
girlfriend) Musser v. Ft.
Rockvale, 11/8:6
Electrical burns:
Valdez v. McCone Electric
Co-op, 6/7:6
House construction:
Blue Ridge Homes v. Thein,
6/7:2
Insurance: ($516,000 wrongful death UIM
verdict not to be offset by $298,433
settlements from other insurers since UIM
insurer failed to prove survivorship v.
wrongful death damages, Idaho law applied to
fees/interest, 12% interest from date of
claim, not demand letter, 1/3 contingency fee
awarded, judgment for $1,128,801.71)
Tucker
v. Farmers Ins. Exchange, 1/19:6;
($41,927,983.35, failure to pay insurer
demutualization proceeds to Class, breach of
contractual/fiduciary duties, Montana
Plaintiffs' counsel)
EFCO v. Iowa Association of Business &
Industry, 5/10:8; ($462,000 ($212,000
compensatory, $250,000 punitives), UIM bad
faith, trial following aborted 1st trial and
finding of sanctions against insurer and
counsel)
Procopio v. Allstate Ins., 6/21:7;
($100,500, credit disability insurance
misrepresentation by lender, lost value of
home)
Hilbish v. Western Security Bank, 7/26:8
HVAC contract: (tavern,
balance due) Rocky Mountain
Mechanical v. The Blue Moon Saloon, 8/23:6
Industrial park: (lost
opportunity) Delaney & Co. v.
Bozeman, 10/4:5
Inverse condemnation:
K&R Partnership v. Whitefish,
7/5:3
Log home package: ($482,336,
log home package breach of contract, misrepresentation, deceptive trade
practices, fir switched for pine/spruce, CPA treble damages/fees to be
tried separately) King v.
Lincoln Logs, 8/9:5
Medical malpractice:
(defense, alleged failure to diagnose DVT in calf leading to near-fatal
pulmonary embolism) Wilcox v.
Moran, 8/16:7; (defense, medical malpractice, alleged failure to
investigate lack of growth of young girl who ultimately was discovered to
have brain tumor) White v.
Johnson, 9/20:6; (defense, medical malpractice, heart arrythmia
death, mistrial ruling based on Defendant attending ill juror pending)
Heidt v. Argani, 10/18:7
Oil/gas services contract:
($2,260,834.78 final judgment on breach of contract counterclaim including
$1,483,232.41 verdict, $93,074.50 sanctions)
Textana v. Klabzuba Oil &
Gas, 6/21:5
Oil/gas exploration
agreement: ($2,642,755.10 net)
DR Four Beat Alliance v . Sierra Production, 9/27:5
Product liability:
(Defendant's post-trial motions denied)
Malcolm v. Evenflo,
1/19:4;(certified questions from Cebull as to indemnity/contribution
accepted) State Farm Fire &
Casualty v. Bush Hog, 9/27:2; (defense, product liability,
cracked teeth from alleged rock in snack mix)
Leavell v. Nutty Guys Inc.,
11/8:6
Property transfer:
($3,950,351.32, undue influence by husband)
Hadachek (PR for Estate of
Anderson-Feeley) v. Feeley, 5/3:7
Radiological exposure:
(drilling rig workers exposed to cesium limited to Price-Anderson claim,
sub-cellular damage not ``bodily injury'' under Price-Anderson (Montana
law definition inapplicable))
Dumontier v. Schlumberger Technology, 9/20:7
Railroad: ($1,080,000 net
(10% preexisting/other conditions), railroad engineer, back/neck/hip)
Dellos v. BNSF, 8/2:6;
($1 million, trainman)
Crowell v. BNSF, 8/16:7; ($90,000, RR yardmaster, broken office
chair, legs/feet pain/numbness)
Young v. BNSF, 8/30:6;
(new trial) 10/11:6
Real estate sale: ($372,000
gross, $37,200 net (10% by Defendants, 10% by Plaintiff, 50% by non-party
settled seller, 30% by non-party settled seller's agent), failure to
disclose contents of restrictive covenants limiting proposed 10-lot
subdivision to 6 lots)
Northwood Estates v. Wauer, 7/5:6
Slip/trip & fall:
($552,313.85 net (65 State/30 County/5 decedent), sidewalk trip & fall
death) Sims (for Comer) v.
State, 9/6:5
Snowboard jump: (defense
verdict in $1 million contribution suit by ski operator against jump
builder affirmed) Marshall
Mountain v. Board of Missoula, 3/22:1
Wrongful discharge: ($20,000
verdict, $47,000 fees/costs, discharge for refusing to quit to avoid
cancer insurance costs) Harding v. Garcia, 2/9:4;
(claims of discharge for use of medical marijuana based on MMMA, WCC, MHRA,
ADA preempted by CBA/FLRA or fail to state claim)
Johnson v. CFAC, 4/26:6;
(carpenter) Pomeroy v. BMC
West, 5/10:5; (constructively discharged body shop employee)
Hager v. JC Billion,
5/17:1; (objections to instructions and verdict form not preserved for
appeal, $206,497 judgment for orthopedic surgeon affirmed)
Buechsenschuetz v. Northern
Rockies Orthopaedic Specialists, 7/26:6; ($252,428, wrongful
discharge, shop/equipment manager)
Poer v. PAR Electric
Contractors, 7/26:7; (controller)
Green v. Northern Line
Layers, 8/30:8
Water
Coal bed methane: (Art. IX
§3(3) and CBM/MUA statutes require management of CBM ground water for
beneficial purposes, not necessary to address healthful environment
clause) Diamond Cross
Properties v. DEQ, 8/30:6
Contract interpretation:
(District Court had jurisdiction to interpret settlement agreement and
apportion water rights, properly looked to historic use to determine that
right was appurtenant to the land, properly adjusted Spaeth
allocation formula under unique circumstances, $42,923 fees to Plaintiffs
who received all of Defendant's percentage of 1 water right and all but
``trickle of water'' more than their offer on other right, statements with
``block billing'' sufficiently detailed)
Kruer v. Three Creeks Ranch,
9/20:1
Delivery: (Plaintiffs failed
to prove breach of duty to provide quantity/quality of water by alteration
of system, Judge's "unwise'' comments reflecting irritation with extended
evidence not grounds for new trial)
Horn v. Little,
1/26:2
Municipal use: (rule defining
``municipal use'' validly repealed, issue not moot despite 2007 amendment
removing municipal use exception)
Lohmeier v. DNRC, 9/6:2
Use application: (failure to
act within statutory time limits on ``correct & complete'' use application
results in mandate to issue permit in amount requested,. fees/costs
awarded, stay pending appeal denied in District Court and Supreme Court)
Bostwick Properties v. DNRC,
8/2:5
Workers'
Compensation
Aggravation: (employment as
minister did not significantly aggravate right knee condition following
overuse from left knee injury as electrician, temporary aggravation did
not result in injurious exposure, electrical insurer liable)
Lanes v. State Fund, 9/6:1
Alcohol use: (alcohol major
cause of accident, but employer knew of use and failed to attempt to stop
it, §407(4) eligibility bar not applicable)
Heth v. State Fund,
5/17:7
Attorney fees/costs:
(objections to claims for fees/costs sustained as to travel to Helena for
emergency trial, "attorney fees'' for nurse consultant, expert testimony
as to issue not prevailed on)
Porter v. Liberty Northwest Ins., 3/22:8; (Petitioner's
attorney's efforts led to acceptance of claim, entitled to Lockhart
fee, Court has jurisdiction to decide Lockhart lien dispute despite
Special Concurrence in Pinnow)
Dildine v. Liberty Northwest
Ins., 4/5:8; (Schmill global common fund objections by
non-named insurers/self-insurers rejected)
Schmill v. Liberty Northwest
Ins., 8/2:8; (expert fees disallowed)
Rau v. State Fund, 8/2:8;
(amendment to add claim for penalty/fees denied)
Hagemann v. MCCF, 8/9:7;
(mother's former attorney not entitled to fee on children's death benefits
after seeking benefits for mother as sole beneficiary)
Briese v. MACoWCT,
11/29:7
Causation: (cervical/shoulder conditions which doctor failed to record
while focused on more severe lumbar complaints likely caused by job
accident) Barnea v. ACE American Ins.,
1/5:6; (non-credible
Petitioner failed to prove job accident caused cervical progression)
Iron v. State Fund,
5/10:6; (heart condition not linked to alleged accident, summary
judgment) Rach v. State Fund,
5/24:8; (pulmonary conditions probably caused by abdominal strain at
work, Daubert objection to treating physician denied)
Hagemann v. MCCF, 8/9:7;
(Petitioner proved that cognitive dysfunction caused by CO exposure while
driving truck, but failed to prove other ailments caused by CO)
Russell v. Watkins & Shepard,
8/16:8
Claim file: (insurer may
charge going rate for claim file copies, not free as requested by
Claimant, not based on statutory amounts for health care providers or
state agencies as urged by insurer)
Stewart v. MACWCT, 5/24:7
Course & scope: (employee injured at
company picnic while riding wave runner in
course & scope, Courser factors
properly applied, invitation to overrule
rejected, abandonment of employment by
reckless operation of wave runner rejected)
Michalak v. Liberty Northwest Ins.,
1/5:1;
(Petitioner in course & scope when injured
driving to work in County vehicle for which
County reimbursed expenses)
Driggers v.
Liberty Northwest Ins.,
1/19:7;
(job duties caused faint which caused head
injury within course & scope, Petitioner
entitled to TTD)
Rau v. State Fund,
6/7:8
Disability rate: (Claimant
not entitled to $1,610/wk disability)
LaFountain v. State Fund,
10/11:8
Domiciliary care: (no
domiciliary care 1984-07 because of lack of notice, $7.50/hr from 2/07
unreasonable, $20 reasonable for RN wife, 20% penalty for unreasonable
rate, fees/costs under 1983 WCA)
Quick v. State Fund, 6/14:7
Employer: (Oregon trucking
company did not maintain ``place of business'' in Montana where MVA
occurred, not ``employer'' for Montana comp)
Benton v. UEF, 8/23:8;
(worker with no IC exemption was employee under A-B test)
Bowler (Rick's Flooring) v.
ICCU, 8/30:8
Exclusivity: (RN's latex
allergy tort claim against hospital barred by comp exclusivity (1999 law))
Korst v. Benefis Health Care, 3/8:2;
Alexander v. Bozeman Ford,
4/19:6, interlocutory ruling that exclusivity not unconstitutional not
accepted for appeal, 11/15:1
Hiring preference: (heavy
equipment mechanic not entitled to hiring preference for bridge equipment
operator because position not consistent with vocational abilities)
Burns v. Flathead Co.,
8/16:7
IME: (11th-hour request denied)
Schoenen v. UEF,
1/26:8;
(insurer entitled to IME despite denial of liability)
First Strike v. MCCF,
2/16:8; (motion to compel
IME denied for failure to show it was scheduled as close to residence as
practical, but insurer allowed to schedule IME at appropriate location
which may include having doctors travel, good cause for motion 3 days
prior to expert disclosure deadline, but IME report must be disclosed
sufficiently in advance of rescheduled trial to allow for depositions)
Challinor v. MIGA, 5/24:7
Incident occurrence: (Petitioner failed to prove mop bucket back injury
incident occurred) Keller v. Rochdale Ins.,
1/26:8; (Petitioner's
incredible testimony is sole evidence of job injury, burden not met)
Hanson v. Cedar Valley
Const., 6/28:8
Intentional tort: (certified
question from 9th Circuit as to intentional tort constitutionality
declined as improvidently accepted after previous acceptance and refusals
of question from US District Court)
Brady v. PPL, 5/31:4
Jurisdiction: (WCC has jurisdiction to consider petition for
declaratory ruling on fraud pursuant to current version of reopen statute)
State Fund v. Simms,
1/26:8; (Petitioner made direct claim for benefits, whether
Thompson precludes WCC from hearing constitutional issues which
indirectly involve claim for benefits immaterial, Dissent in Thompson
of no legal effect) Miller v.
Liberty Mutual Fire Ins., 5/10:5
Liability: (reconsideration
of ruling finding liability for back but no liability for cervical
condition denied) Porter v.
Liberty Northwest Ins., 3/22:8
Lump sum conversion: (denied, new 4-wheeler, fishing boat, not
"necessities of life'') Benhart v. Liberty Northwest Ins.,
2/2:7; (§39-71-741(1)
allows lump sum of entire amount of PTD, not limited to $20,000, full
$80,893 conversion properly granted)
Barnard v. Liberty Northwest
Ins., 7/26:5
Mediation: (Petitioner's
letter satisfied mediation request requirements despite not employing
precise verbiage) Emergency
Preparedness Systems v. Scobie, 9/13:8
Medical authorization:
(Claimant not entitled to authorization to travel to Germany for
artificial disk replacement)
LaFountain v. State Fund, 10/11:8
Notice: (security officer's
claim time-barred for failure to notify employer within 30 days of
learning that altercation with trespasser was probable cause of injury,
``incident reports'' that do not describe unusual strain or trauma not
sufficient notice) Siebken
v. Liberty Mutual Ins., 10/25:2
Penalty: (awarded)
Driggers v. Liberty Northwest Ins., 1/19:7;
(awarded for refusal to pay for hip replacement allegedly stemming from
preexisting joint disease, since claim settled with medicals left open)
Narum v. Liberty Northwest
Ins., 6/14:8; (denied)
Tinker v. State Fund, 7/12:8; (denied)
Russell v. Watkins & Shepard,
8/16:8; (no fees or penalty despite improper credibility questioning
in letter to doctor) Kramer
v. MCCF, 11/8:8
PPD: (§39-71-703 PPD denial
for age, education, lifting, with no actual wage loss, constitutional,
classes not similarly situated)
Wilkes v. State Fund,
2/9:1; (no common fund in PPD age limit case, Reesor
retroactive, payment on open claims not barred on timeliness grounds,
common fund doctrine not violative of freedom of contract, taking)
Reesor v. State Fund,
6/7:7
Procedure: (summary judgment
declined due to multiplicity of briefs compared to shortness of trial)
Liberty Northwest Ins. v.
State Fund (In re Mitchell), 2/9:8; (Petition untimely filed more
than 60 days after mediator's report, dismissed with prejudice, motion
challenging constitutionality of §39-71-520 untimely under ARM 24.5.316,
not considered) Benton v. UEF,
6/7:8; (dismissal of untimely petition because brief in opposition to
dismissal motion not timely reversed upon explanation that deadline was
calendared based on MRCivP which excludes weekends rather than ARM which
includes weekends, Benton v.
UEF, 8/23:8; (stay of summary judgment to permit discovery denied
as unsupported) Benton v.
UEF, 8/23:8; (motion to find summary judgment inappropriate based
on newly discovered evidence denied)
Hilbig v. UEF, 9/13:8;
(statute of limitation on last day of employment (1993) to be applied to
asbestosis claim, not statute in effect at time of claim (2003))
Fleming v. International
Paper, 9/27:1; (motions to allow post-trial evidence of
termination date denied in light of stipulation to WCA year and absence of
issue in pretrial order)
Kilgore v. Transportation Ins., 11/8:7; (retroactivity principles
of Dempsey and Schmill II reaffirmed as applicable to cases
not ``final'' or ``settled'', ``settled'' claim clarified to include claim
``paid in full'', comp retroactivity dependent on whether claim is
``final'' or ``settled'', 2-year statute properly not applied to
retroactivity) Flynn v.
State Fund, 11/29:2; (motion to compel EPA CDs granted, reasonable
copying cost may be charged)
Fore v. Transportation Ins., 11/29:7
PTD: (PTD age limit not
violative of substantive due process, not unconstitutionally
discriminatory) Satterlee v.
Lumberman's Mutual Casualty, 6/7:7
Re-employment preference:
(lies with date-of-injury employer, not subsequent owner)
Sizemore v. Copper King
Hotel,
2/16:8
Reopen: (settlement with
prior employer reopened for mistake as to future need for surgery)
Harrison v. Liberty Northwest
Ins., 4/12:2; (Parkinson's that developed 10 years after
settlement of head injury claim not a mutual mistake of fact of condition
existing at time of settlement that would justify rescission)
Kruzich v. Old Republic Ins.,
6/14:2
Retirement: (retired Petitioner not eligible for PTD, conversion moot
since she was never PPD, "conversion'' arguably nothing more than TTD
overpayment) Woodards v. MIGA,
1/19:8;
("reconsideration'' denied on impairment issue not previously submitted,
oral argument denied) 2/23:8
Sanctions: (Claimant's lawyer
sanctioned $300 for not withdrawing promptly when conflict recognized)
State Fund v. Simms, 8/9:7
Settlement: (penalty/fees for
refusal to pay for hip replacement allegedly stemming from preexisting
joint disease, since claim settled with medicals left open)
Narum v. Liberty Northwest
Ins., 6/14:8; (Intervenor's motion for summary judgment that
stipulation for settlement is valid/enforceable contract granted after
Petitioner failed to respond)
Pinnow v. Halverson, Sheehy & Plath, 6/28:8
Stavenjord
identification/notification: (impossible to comply with
Supreme Court's remand order) Stavenjord v. State Fund,
1/19:7;
(reconsideration denied) 4/26:7
Subsequent insurer: (Claimant
did not reach MMI for cervical condition until MMI following neck surgery,
1st insurer liable, 2nd insurer entitled to indemnification)
Liberty Northwest Ins. v.
Valor Ins.,
2/9:8;
(injury under subsequent insurer temporary
aggravation, prior employer responsible for benefits, settlement with
prior employer reopened for mistake as to future need for surgery)
Harrison v. Liberty Northwest
Ins., 4/12:2
Timeliness: (claim timely
under exception for lack of knowledge of disability until Claimant sought
treatment because injury prevented performing job (no estoppel/latent
injury)) Tinker v. State Fund,
7/12:8
UEF: (uninsured employer not
proper party to dispute between Petitioner and UEF contrary to ARM, but
may intervene) Raymond v.
UEF, 9/27:8
Voluntary termination of
employment: (benefits for 2 periods precluded by voluntary termination of
employment, unavailability for work)
Fabbi v. Valley Forge Ins.,
4/26:8
Wages: (good cause for
utilizing 1 year of wages to determine benefits)
Cardwell v. UEF, 5/24:8;
(wage for non-seasonal construction worker should be calculated pursuant
to §123(3)(a), not pursuant to assumption that all construction workers
are seasonal) Kramer v. MCCF,
11/8:8
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