Lozeau v. Geico Indem. Co.

• Decision Date: 21 April 2009
• Docket Number: No. DA 08-0084.,DA 08-0084.
• Citation: 350 Mont. 320,2009 MT 136,207 P.3d 316
• Parties: D. Lisa LOZEAU, Plaintiff and Appellant, v. GEICO INDEMNITY CO. and, Elizabeth Durglo, a/k/a Liz Durglo, Defendant and Appellee.
• Court: Montana Supreme Court

207 P.3d 316

2009 MT 136

350 Mont. 320

D. Lisa LOZEAU, Plaintiff and Appellant, v. GEICO INDEMNITY CO. and, Elizabeth Durglo, a/k/a Liz Durglo, Defendant and Appellee.

No. DA 08-0084.

Supreme Court of Montana.

Submitted on Briefs November 26, 2008.

Decided April 21, 2009.

For Appellant: Howard Toole; Howard Toole Law Office; Missoula, Montana.

For Appellee: John E. Bohyer, J. Wayne Capp; Bohyer, Simpson & Tranel, P.C.; Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Lisa Lozeau (Lozeau) appeals from the order of the Twentieth Judicial District Court granting Elizabeth Durglo's (Durglo) motion to dismiss. We reverse and remand.

¶ 2 We consider the following issue on appeal:

¶ 3 Did the District Court err when it concluded equitable tolling did not apply, and granted Durglo's motion to dismiss for Lozeau's failure to comply with the statute of limitations?

BACKGROUND

¶ 4 On October 5, 2003, two vehicles operated by Lozeau and Durglo collided at the intersection of Lemery Lane and Watson Road in Lake County, Montana, within the external boundaries of the Confederated Salish and Kootenai Tribes (Confederated Tribes) of the Flathead Reservation. No citations were issued. Lozeau has alleged that Durglo caused the accident by failing to properly yield the right-of-way and that she sustained injuries. Lozeau, who is not a tribal member, resides with her children, who are tribal members, on the reservation. Durglo is a member of the Confederated Tribes and at the time of the accident was insured by GEICO.

¶ 5 In June of 2006, Lozeau filed a complaint alleging negligence in the Tribal Court, naming both Durglo and GEICO as defendants. She filed an amended complaint on September 11, 2006, and served this complaint and summons upon both Durglo and GEICO.¹ On October 11, 2006, GEICO filed a motion to dismiss, arguing the Tribal Court lacked both personal and subject matter jurisdiction. Concerned about the outcome of this jurisdictional challenge, Lozeau filed a complaint against the same defendants in the Lake County District Court on November 21, 2006, about six weeks after the three year anniversary of the accident. On May 21, 2007, the Tribal Court granted GEICO's motion to dismiss, concluding, "without deciding the issue of subject matter jurisdiction," that it lacked personal jurisdiction over Lozeau. Nothing in the record indicates the parties or the Tribal Court questioned the Tribal Court's jurisdiction over Durglo.

¶ 6 Durglo filed a motion to dismiss the District Court action based upon Lozeau's late filing. In response, Lozeau argued the District Court should allow her case to proceed pursuant to the equitable tolling doctrine.

¶ 7 The District Court excluded from consideration several documents submitted with the parties' briefing on Durglo's Rule 12(b)(6) motion. Lozeau submitted the complaints she had filed with the Tribal Court and her counsel's affidavit discussing the actions she took in Tribal Court. Durglo submitted the Tribal Court's order dismissing the case. After declining to consider these references to the Tribal Court proceeding, the District Court concluded that "no facts exist" which would support application of the equitable tolling doctrine. Despite this threshold determination, the District Court proceeded to analyze the merits of the doctrine's application under the factors this Court has provided, ultimately concluding that the doctrine would not apply due to the prejudice caused to Durglo. Lozeau appeals from the District Court's dismissal of her complaint.²

STANDARD OF REVIEW

¶ 8 We review de novo a district court's ruling upon a Rule 12(b)(6) motion, construing the complaint in the light most favorable to the plaintiff and taking all allegations of fact contained therein as true. Meagher v. Butte-Silver Bow City-County, 2007 MT 129, ¶ 13, 337 Mont. 339, 160 P.3d 552.

DISCUSSION

¶ 9 Did the District Court err when it concluded equitable tolling did not apply and granted Durglo's motion to dismiss for Lozeau's failure to comply with the statute of limitations?

¶ 10 Preliminarily, we note the District Court's election, citing Meagher, to not consider anything outside the pleadings when taking up Durglo's motion to dismiss. In Meagher, we explained that a district court "has the discretion to include or exclude matters presented to it that are outside of the pleadings when considering a motion to dismiss," although, if choosing to look beyond the pleadings, it must generally treat the motion as one for summary judgment under Rule 56, M.R. Civ. P., and give notice of this intention to the parties. Meagher, ¶ 16 (citing cases, including Plouffe v. State, 2003 MT 62, ¶ 8, 314 Mont. 413, 66 P.3d 316).

¶ 11 In Farmers Coop. Assoc. v. Amsden, LLC., 2007 MT 287, 339 Mont. 452, 171 P.3d 684, we made a subtle distinction from the general rule as stated in Plouffe and Meagher, where the district court had considered pleadings from another closely related case when ruling on a motion to dismiss. In doing so, we noted:

The policy behind converting a motion to dismiss into a motion for summary judgment when a court considers outside information, is to notify the parties of the additional evidence considered, allow ample opportunity for the parties to prepare information countering the additional evidence, and avoid surprise. See Plouffe, ¶ 15. These concerns do not exist in the present case. The parties were not surprised by the information and there was no need for further time to consider the issues presented.

Farmers Coop., ¶ 23. We thus held that the district court had correctly reviewed the pleadings from the other case before rendering its decision to dismiss the pending action. Farmers Coop., ¶ 24.

¶ 12 Lozeau's complaint did not reference the Tribal Court proceeding, but both parties discussed it in their briefing to the District Court. Lozeau attached an affidavit of her attorney discussing the Tribal Court case and copies of the Tribal Court pleadings. Durglo submitted a copy of the Tribal Court's order dismissing the case. We believe the District Court should have considered this information about the Tribal Court's action, as it was particularly relevant to Lozeau's argument that equitable tolling should apply and could properly be considered pursuant to Farmers Coop.

¶ 13 On the merits of the dismissal, Lozeau does not dispute that she filed the action after expiration of the applicable three-year statute of limitation, set forth in § 27-2-204, MCA. Her position is that the District Court erred by rejecting her argument that the action should be considered timely pursuant to the equitable tolling doctrine.

¶ 14 Equitable tolling allows in limited circumstances for an action to be pursued despite the failure to comply with relevant statutory filing deadlines. Harrison v. Chance, 244 Mont. 215, 228, 797 P.2d 200, 208 (1990); Erickson v. Croft, 233 Mont. 146, 760 P.2d 706 (1988). Recently, we addressed the requirements a party must demonstrate for application of the doctrine:

the statute of limitations may be tolled when a party reasonably and in good faith pursues one of several possible legal remedies and the claimant meets three criteria: (1) timely notice to the defendant within the applicable statute of limitations in filing the first claim; (2) lack of prejudice to [the] defendant in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the second claim.

Let the People Vote v. Bd. of Co. Comm. of Flathead Co., 2005 MT 225, ¶ 18, 328 Mont. 361, 120 P.3d 385 (citations omitted). Essentially, a plaintiff must first show a reasonable and good faith pursuit of one of several possible remedies and then demonstrate the three criteria listed above have been satisfied: (1) the defendant was notified timely within the statute of limitations by the filing of the first claim; (2) the defendant's ability to gather evidence for defense of the second claim was not prejudiced; and (3) the plaintiff reasonably and in good faith filed the second claim.

¶ 15 Durglo argues Lozeau failed to meet the initial determination because she only had one reasonable legal remedy—to file her complaint in a state district court. Durglo argues it was not reasonable for Lozeau to pursue her claim in the Tribal Court because of the "virtually certain" jurisdictional flaw in doing so.

¶ 16 While Durglo characterizes exclusive state jurisdiction for Lozeau's claim as virtually certain, we recognize that the issue of state and tribal jurisdiction can present a procedural quandary for litigants. Questions of whether the parties are Indian or non-Indian, whether they are tribal members or nonmember Indians, whether the incident occurred in Indian country fee or trust land, and whether the particular tribe is subject to legislation limiting the tribes' jurisdiction often must be considered. See Confed. Salish...