Archive | May, 2016

State v. Hislop

State v. Hislop, 2016 MT 130 (May 31, 2016) (Rice, J.) (5-0, aff’d)

Issue: Whether Hislop’s aggravated DUI conviction violates the prohibition on ex post facto laws.

Short Answer: No.

Affirmed

Facts: Hislop’s driver’s license was suspended in 2007 because she declined to submit to preliminary alcohol screening after being arrested for DUI. She was ultimately acquitted at trial.

In 2011, the Montana legislature enacted § 61-8-465, MCA, the aggravated DUI statute providing that a person commits the offense if she operates a vehicle under the influence of alcohol and refuses a breath or blood sample, and has had her license suspended within the previous 10 years for refusal to submit a breath or blood sample.

In 2013, Hislop was arrested for DUI and refused to provide a breath or blood sample.…

State v. Colvin

State v. Colvin, 2016 MT 129 (May 31, 2016) (McGrath, C.J.) (4-0, aff’d)

Issue: Whether the district court erred in dismissing the charge against Colvin based on his claim that the state failed to preserve exculpatory evidence.

Short Answer: No.

Affirmed

Facts: The state charged Colvin with attempted deliberate homicide in the September 4, 2014 shooting of Michael Aja. At the time of the incident, Aja was sitting his Jeep. Colvin claimed he was holding the pistol inside the driver’s side window when it accidentally fired and hit Aja.

On the day of the shooting, law enforcement seized and impounded Aja’s Jeep. As the case developed, the position of the pistol and its distance from the victim because important issues.…

Brunette v. State

Brunette v. State, 2016 MT 128 (May 31, 2016) (Baker, J.; McKinnon, J., dissenting) (5-2, aff’d)

Issue: Whether the district court erred in denying Brunette’s petition to reinstate his driver’s license. 

Short Answer: No.

Affirmed

Facts: In April 2015, Officer Brotnov was on patrol in Cut Bank. Police department dispatch received a call form an unknown officer to run a license plat check on Burnette’s vehicle, parked on Central Avenue. Sometime later, Officer Brotnov drove past Brunett’e vehicle, at which point Brotnov turned around and drove in the opposite direction. Brotnov and another officer continued to patrol the area, discussing Brunette’s whereabouts. After observing Brunette pull over and change directions twice, officer Brotnov began to follow Brunette, saw him make a right-hand turn without using his turn signal, and initiated a traffic stop.…

Keuffer v. O.F. Mossberg & Sons, Inc.

Keuffer v. O.F. Mossberg & Sons, Inc., 2016 MT 127 (May 31, 2016) (Wheat, J.; Baker, J., dissenting; McKinnon, J., dissenting) (4-3, aff’d)

Issue: Whether the district court abused its discretion in disqualifying Mossberg’s out-of-state and local counsel for violation of Rule 1.20 of the Montana Rules of Professional Conduct.

Short Answer: No.

Affirmed

Facts: Luke and Stephanie Keuffer were hunting in Montana in October 2008. Stephanie was using a .308 Mossberg model 800 rifle. The Keuffers allege that the Mossberg rifle fell and struck Luke’s rifle, which discharged and shot Luke in the face, causing serious and permanent injury.

In August 2010, Luke called Tarlow & Stonecipher, PLLC and spoke to attorney Margaret Weamer regarding a possible claim against a gun manufacturer for injuries sustained in a hunting accident.…

Tyrrell v. BNSF Railway Co.

Tyrrell v. BNSF Railway Co., 2016 MT 126 (May 31, 2016) (Shea, J.; McKinnon, J., dissenting) (6-1, aff’d & rev’d) (consolidated appeals)

Issue: (1) Whether Montana courts have personal jurisdiction over BNSF under FELA, and (2) whether Montana courts have personal jurisdiction over BNSF under Montana law.

Short Answer: (1) Yes, and (2) yes.

Affirmed (denial of BNSF’s motion to dismiss) and reversed (granting BNSF’s motion to dismiss)

Facts: In March 2011, Nelson, a North Dakota resident, sued BNSF in Montana to recover damages for injuries sustained in his employment with BNSF. BNSF is a Delaware corporation with its principal place of business in Texas. Nelson does not allege that he ever worked in Montana or was injured in Montana.…

In re Blue Cross and Blue Shield of Montana, Inc.

In re Blue Cross and Blue Shield of Montana, Inc., 2016 MT 121 (May 24, 2016) (Cotter, J.) (5-0, aff’d)

Issue: (1) Whether objector Laura Fortune waived her right on appeal to object to the settlement; (2) whether objector Kevin Budd has standing to object to the settlement agreement; (3) whether the district court abused its discretion in certifying this matter as a class action; (4) whether the district court abused its discretion in approving the settlement agreement; and (5) whether the district court erred by allowing individual settlements.

Short Answer: (1) Yes; (2) no; (3) no; (4) no; and (5) no.

Affirmed

Facts: Claimants assert that while they were insured by Blue Cross Blue Shield (now Caring for Montanans, Inc.) or Montana Comprehensive Health Association (MCHA), they submitted claims that the insurers denied based on policy exclusions that were subsequently disapproved by the Montana Commissioner of Insurance.…

In re the Parenting of CMR

In re the Parenting of CMR, 2016 MT 120 (May 24, 2016) (McGrath, C.J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in denying father’s motion to change venue; (2) whether the district court erred in granting mother’s motion to dismiss the modification of the parenting plan; and (3) whether the district court violated father’s due process rights.

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

Affirmed

Facts: CMR was born in November 2009 to Ray and Amber. They lived together until May 2010, and have been litigating the terms of their parenting plan as CMR has gotten older. Amber is CMR’s primary care provider. The parents signed a mediation parenting plan in February 2015, which is the basis of this appeal.…

Denturist Assoc. of Montana v. State Dept. of Labor & Industry

Denturist Assoc. of Montana v. State Dept. of Labor & Industry, 2016 MT 119 (May 24, 2016) (Rice, J.) (5-0, aff’d & rev’d)

Issue: Whether the district court erred in concluding Brisendine’s claims were barred by res judicata.

Short Answer: No, as to Counts II and III, but yes as to Count I.

Affirmed in part and reversed in part

Facts: The Denturist Association of Montana, on behalf of denturist Carl Brisendine, filed suit against the Board of Dentistry, challenging the validity of A.R.M. 24.138.2302(1)(j) (Rule J). the parties have been in dispute since 1991 in a series of cases. Brisendine’s complaint alleged three counts: discriminatory restraint of trade (Count I), and conflict with various statutes (Counts II and III).…

Pacific Hide & Fur Depot v. Emineth Custom Homes, Inc.

Pacific Hide & Fur Depot v. Emineth Custom Homes, Inc., 2016 MT 114 (May 17, 2016) (McGrath, C.J.) (5-0, aff’d & rev’d)

Issue: Whether the district court properly entered judgment following the jury’s verdict. 

Short Answer: No. It erred in assuming Pacific was entitled to a refund of its down payment.

Affirmed in part, reversed in part, and remanded

Facts: Pacific put a warehouse construction and office/shop remodeling project out for bid in 2011, and awarded the contract to Emineth as the low bidder. An unsuccessful bidder threatened to cancel a rail siding lease if Emineth were allowed to proceed, and Pacific revoked the contract with Emineth. Shortly thereafter Pacfici entered into two contracts with Emineth, one for renovating the office/shop and one to build employee housing.…

Fire Insurance Exchange v. Weitzel

Fire Insurance Exchange v. Weitzel, 2016 MT 113 (May 17, 2016) (McKinnon, J.) (5-0, rev’d)

Issue: Whether the district court erred by concluding Fire Insurance Exchange (FIE) had a duty to defend Weitzel under the terms of the insurance policy.

Short Answer: Yes.

Reversed and remanded for entry of judgment in FIE’s favor

Facts: The estate of Ronny Groff brought suit against Jake Weitzel, alleging that Weitzel gained the trust of Groff, an elderly man, and then absconded with Groff’s property and assets over a number of years. Groff’s children hired Weitzel in 2010 to provide in-home care services to Groff and his wife, who died in 2011. Weitzel provided services until Ronny died in July 2013.

The estate’s complaint alleges that after Ronny’s wife died, Weitzel began to wrongfully exert control over Ronny and exploit him to her financial gain.  …