Archive | Wheat, J. (concurring)

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Global Client Solutions, LLC v. Ossello

Global Client Solutions, LLC v. Ossello, 2016 MT 50 (March 2, 2016) (McGrath C.J.; Wheat, J., concurring; McKinnon, J., dissenting) (5-2, aff’d)

Issue: (1) Whether the district court erred in reserving to itself the determination of arbitrability; and (2) whether the district court erred in determining that the arbitration provision was unconscionable and therefore not enforceable.

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

Denial of motion to dismiss and to compel arbitration affirmed

Facts: Ossello had more than $40,000 in unsecured debt in 2012 when she received an unsolicited mailing from World Law, advertising that it could provide debt relief services. Ossello called and spoke to a sale agent. Ossello and the agent reviewed several form agreements, which Ossello electronically signed, including a Client Services Agreement with World Law and a Dedicated Account Agreement (DAA) with Global Client Solutions.…

Montana Cannabis Industry Assoc. v. State

Montana Cannabis Industry Assoc. v. State, 2016 MT 44 (Feb. 25, 2016) (Baker, J., for the majority; McKinnon, J., concurring & dissenting; Rice, J., concurring & dissenting; Wheat, J.,concurring & dissenting) (6-1 on 5 of 6 issues; 4-3 on the 6th issue; aff’d & rev’d) (Cotter, J., recused and replaced by District Judge Robert Olson)

Issue: (1) Whether the district court properly held unconstitutional the statutory requirement that DPHHS notify the Board of Medical Examiners of any physician who certifies more than 25 patients a year for medical marijuana; (2) whether the district court properly held unconstitutional (a) the statute’s 3-patient limit and (b) the remuneration restriction; (3) whether the district court properly applied strict scrutiny to the statutory provision prohibiting advertising by medical marijuana providers; (4) whether the district court properly held that the statutory provision prohibiting probationers from becoming registered cardholders for medical marijuana was facially constitutional; and (5) whether the district court properly held constitutional the statutory provision allowing warrantless inspections of medical marijuana providers’ business by DPHHS and law enforcement.…

Christian v. Atlantic Richfield Co.

Christian v. Atlantic Richfield Co., 2015 MT 255 (Sept. 1, 2015) (McKinnon, J.; Baker, J., concurring (2, 3, 4); Wheat, J., concurring (1, 2, 3) & dissenting (4); Rice, J., concurring (4) & dissenting (1)) (aff’d & rev’d)

Issue: (1) Whether the continuing tort doctrine requires evidence of the continued migration of contaminants; (2) whether genuine issues of material fact exist regarding the reasonableness of abating the contamination on Landowners’ properties; (3) whether the continuing tort doctrine applies to Landowners’ claims other than nuisance and trespass; and (4) whether the facts constituting Landowners’ claims were concealed or self-concealing, or whether ARCO took action to prevent Landowners from learning those facts.

Short Answer: (1) No, migration is not the dispositive factor; the key to whether an injury is temporary or permanent is whether further abatement is reasonable (McKinnon, Cotter, Wheat, Shea, Manley) (Rice dissents) (5-1); (2) yes, reasonable abatability must be decided by the trier of fact (McKinnon, Cotter, Baker concurs in the judgment, Wheat, Shea, Manley) (6-0); (3) yes for continuing injuries caused by strict liability, negligence, and wrongful occupation, but not for unjust enrichment (McKinnon, Cotter, Baker, Wheat, Shea, Manley) (6-0); (4) no, and Landowners’ claims for unjust enrichment and constructive fraud are therefore time-barred (McKinnon, Cotter, Baker, Rice) (Wheat dissents, Shea & Manley join) (4-3).…

Anderson v. BNSF Railway

Anderson v. BNSF Railway, 2015 MT 240 (Aug. 12, 2015) (Shea, J.; Wheat, J., concurring; McKinnon, J., dissenting) (6-1, rev’d)

Issue: (1) Whether the district court erred in allowing the statute of limitations to be decided as a fact question; (1.a) whether the continuing tort doctrine applies to cumulative trauma injuries under FELA; (1.b) whether an employee can recover under FELA for aggravation of a time-barred injury; (1.c) whether non-disabling aches and pains constitute an injury under FELA; and (2) whether counsel for BNSF made improper comments that deprived Anderson of a fair trial.

Short Answer: (1) No; (1.a) no; (1.b) yes; (1.c) no; and (2) yes.

Reversed and remanded for new trial

Facts: Robert Anderson worked for BNSF for more 30 years, primarily as a carman inspecting and repairing railroad cars in Havre.…

Spotted Horse v. BNSF R.R. Co.

Spotted Horse v. BNSF R.R. Co., 2015 MT 148 (May 29, 2015) (Cotter, J.; Wheat, J., concurring; McKinnon, J., dissenting) (6-1, rev’d)

Issue: (1) Whether the district court abused its discretion in declining to grant plaintiff’s motion for default judgment based on spoliation of evidence; and (2) whether the district court abused its discretion when instructing the jury as to BNSF’s duty of care.

Short Answer: (1) No, but the sanction it imposed was an abuse of discretion; and (2) yes.

Reversed and remanded for a new trial

Facts: Mark Spotted Horse, a BNSF Railway machinist, claimed that he suffered a disabling injury when his co-worker inadvertently lowered a locomotive engine compartment hatch in his head. Spotted Horse reported the incident and was immediately taken to the hospital.…