Archive | June, 2015

Wagman v. Motl

Wagman v. Motl, 2015 MT 168 (June 23, 2015) (Rice, J.) (5-0, aff’d & rev’d)

Issue: Whether the district court erred by transferring Wagman’s declaratory judgment action to Lewis & Clark County.

Short Answer: No, transfer was warranted, but the district court lacked power to transfer to a specific department and judge.

Affirmed in part and reversed in part

Facts: Pat Wagman was a 2010 candidate for state Senate District 31, which included all of Park County and most of Sweet Grass County. The Commissioner of Political Practices, Jonathan Motl, filed a civil enforcement action against Wagman in Lewis & Clark County. Before filing, Motl notified the Lewis & Clark County attorney, providing an opportunity for the county attorney to prosecute.…

Martin v. BNSF Railway

Martin v. BNSF Railway, 2015 MT 167 (June 23, 2015) (Shea, J.; McKinnon, J., concurring & dissenting) (4-1, aff’d & rev’d)

Issue: (1) Whether the district court erred by allowing Martin’s Locomotive Act claim to be considered by the jury; (2) whether district court abused its discretion by excluding evidence of heated platforms at BNSF’s Whitefish and Essex depots; and (3) whether the district court abused its discretion by admitting into evidence the amount of income Martin made from non-railroad-related employment.

Short Answer: (1) No; (2) yes for the Whitefish platform but no for the Essex one; (3) yes, necessitating a new trial.

Affirmed and reversed and remanded for new trial

Facts: Martin began working for BNSF in 2004, and was promoted to conductor after a few months.…

TAGS Realty, LLC v. Runkle

TAGS Realty, LLC v. Runkle, 2015 MT 166 (June 23, 2015) (Wheat, J.) (5-0, rev’d)

Issue: Whether the district court erred in granting summary judgment to Runkle on TAGS’s trespass and conversion claims.

Short Answer: Yes.

Reversed and remanded

Facts: Runkle and TAGS are the locators of several adjacent and overlapping mining claims in Broadwater County. Runkle purchased a patented lode claim, Black Friday, in 2009. TAGS located an unpatented lode claim next to Black Friday in 2010. In 2011, Runkle bought an unpatented placer claim that overlapped both TAGS’s claim and Black Friday. This case involves a pile of mining waste located on both Runkle’s and TAGS’s claims, which overlapped the common border of TAGS’s claim and the Black Friday claim, and was entirely within Runkle’s placer claim.…

F.H. Stoltze Land & Lumber Co. v. American States Insurance Co.

F.H. Stoltze Land & Lumber Co. v. American States Insurance Co., 2015 MT 165 (June 23, 2015) (Baker, J.) (5-0, aff’d)

Issue: Whether district court properly granted summary judgment to insurer on grounds that policy insurer has with Schlegel does not require it to defend and indemnify Stoltze in action where Schlegel could not be held liable.

Short Answer: Yes.


Facts: In 2003, Schlegel and Stoltze contracted for Schelgel to log Stoltze’s property. In the contract, Schlegel agreed to obtain liability insurance indemnifying Stoltze from liability for loss or injury arising from the logging operations. Schelgel also agreed that the indemnification would not be limited by Schlegel’s immunity, Schlegel having waived such immunity as a defense against Stoltze.

The policy extended coverage to any person for whom Schlegel was required by contract to provide insurance, but further provided there was no coverage if “in the absence of this endorsement, no liability would be imposed by law” on Schlegel.…

Weber v. State

Weber v. State, 2015 MT 161 (June 16, 2015) (Baker, J.) (5-0, aff’d & rev’d)

Issue: Whether the district court erred in denying the state’s motion for summary judgment based on immunity under § 41-3-203(1), MCA.

Short Answer: Yes.

Judgment for the state affirmed, denial of State’s motion reversed

Facts: Leslee Weber and Kelly Etapa are the birth parents of two minor daughters, FE and GE. In May 2007, Weber and Etapa were legally separated by a Wisconsin court. In June 2007, Weber and the girls left Wisconsin to spend the summer in Montana. Etapa trailered the family’s horses to Montana and returned to Wisconsin the next day.

Weber was hired as a counselor at the Willow Creek School in Broadwater County in July 2007, and notified Etapa via certified letter that she intended to remain in Montana with the girls.…

McDonald v. Ponderosa Enterprises, Inc.

McDonald v. Ponderosa Enterprises, Inc., 2015 MT 160 (June 16, 2015) (Wheat, J.; McKinnon, J., concurring & dissenting) (5-0, aff’d)

Issue: (1) Whether the district court erred in holding the Montana Occupational Health and Safety Act did not create duty of safety running from an employer to an independent contractor; (2) whether the district court erred in prohibiting testimony related to “rules” on a construction site; and (3) whether RTK is entitled to costs and fees for being improperly joined as an appellee by Ponderosa.

Short Answer: (1) No; (2) no; and (3) no.


Facts: Ponderosa is a framing company, and Matt Orrell is its principal. Cody McDonald is a construction worker doing business as Head First Construction. McDonald was approved as an independent contractor by the Department of Labor in April 2008.…

Allstate Insurance Co. v. Posnien, Inc.

Allstate Insurance Co. v. Posnien, Inc., 2015 MT 162 (June 16, 2015) (Rice, J.) (7-0, rev’d)

Issue: Whether the district court erred in determining that Posnien retained no security interest in the Allstate book of business sold to Baird 7 pursuant to the terms of Allstate’s contract documents.

Short Answer: Yes.

Reversed and remanded

Facts: Fay Posnien was an exclusive agent for Allstate. In 2006, Fay decided to sell the agency and retire. Allstate placed an ad on its website listing the agency for sale, and Mary Baird, incorporated at Baird 7, offered to buy the agency from Posnien for $450,000.

Posnien was required to obtain Allstate’s approval of Baird 7 as the buyer. Allstate’s Montana field manager met with Baird, shared the agency’s revenue and expense history, reviewed her business plan, tax returns and other financial documents, and conducted personal interviews with her.…

State v. Passwater

State v. Passwater, 2015 MT 159 (June 11, 2015) (Wheat, J.) (5-0, aff’d)

Issue: Whether the district court properly ordered Passwater to pay restitution based on the Life Care Plan.

Short Answer: Yes.


Facts: In July 2012, Passwater failed to yield while making a left turn off of highway 83 and collided with a motorcycle. Bryce Boots was driving the motorcycle and his wife Lynn was a passenger. Both were hospitalized. Bryce suffered a broken left foot and Lynn’s left leg was amputated below the knee. Passwater was intoxicated at the time of the accident.

Passwater pled guilty to negligent vehicular assault. The state prepared a presentence investigation (PSI), which was delivered to Passwater in December 2013. The PSI included a victim impact letter and an affidavit fro the Boots claiming a pecuniary loss of $1,427,318.01.…

Lay v. State Dept. of Military Affairs

Lay v. State Dept. of Military Affairs, 2015 MT 158 (June 10, 2015) (Rice, J.) (5-0, aff’d)

Issue: Whether Lay’s claims were time-barred as a matter of law under the Montana Human Rights Act.

Short Answer: Yes.


Facts: Monique Lay’s position as public information officer for the Emergency Servics Division of the State Department of Military Affairs was eliminated pursuant to the division’s reduction-in-force (RIF) policy. Lay filed a grievance with the Department of Labor and Industry Hearings Bureau, alleging the division terminated her in retaliation for her complaint that Jessica Davies, another employee, had received favorable treatment for engaging in a sexual relationship with division supervisor Paul Grimstad. The hearings bureau conducted a hearing and dismissed Lay’s complaint, concluding the division terminated Lay for business reasons related to the RIF.…

State v. Pinder

State v. Pinder, 2015 MT 157 (June 9, 2015) (Wheat, J.) (5-0, aff’d)

Issue: Whether 1,1-Difluorethane (DFE) is a drug such that driving under its influence is DUI.

Short Answer: Yes.


Facts: Taylor Pinder crashed a truck into a lamppost outside a motel in Butte. When police arrived, Pinder was exiting a bathroom in the motel dining room. He appeared intoxicated and was having difficulty standing, walking, speaking, or follow verbal commands. The officers called for an ambulance to take him to the hospital. Shortly, after, a motel employee have the officers a can of aerosol dust remover discovered in the bathroom Pinder had exited. The officers knew dust remover can be used as an inhalant.

At the hospital, Pinder was arrested for DUI.…