State v. District Court of Fourteenth Judicial Dist., In and For Golden Valley County

Decision Date05 December 1977
Docket Number13931 and 13932,Nos. 13930,s. 13930
Citation572 P.2d 201,34 St.Rep. 1447,175 Mont. 63
PartiesSTATE of Montana (J. Patrick Byorth) (Dorothy D. Bleeker) (Edward B. Campen), upon Applications for Writ of Supervisory Control, Relators, v. The DISTRICT COURT OF the FOURTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF GOLDEN VALLEY, and the Honorable Nat Allen, Presiding District Judge, Respondents.
CourtMontana Supreme Court

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Cale J. Crowley (argued), Ronald R. Lodders (argued), Billings, for relators.

Longan & Holmstrom, Robert W. Holmstrom (argued), Anderson, Symmes, Forbes, Peete & Brown, James L. Jones (argued), Hibbs, Sweeney & Colberg, Maurice R. Colberg, Jr. (argued), Moulton, Bellingham, Longo & Mather, Moses, Tolliver & Wright, Billings, for respondents.

GORDON BENNETT, District Judge, sitting for HASWELL, J.

Relator State of Montana seeks an appropriate writ requiring the respondent District Court to vacate its order denying the State's identical motions in three actions now pending in the District Court. The actions arose from the death of four people in a highway accident. Negligence on the part of the State in construction and maintenance of the highway was alleged.

The State moved for summary judgment or judgment on the pleadings based on the defense of sovereign immunity as to claims arising out of death. It also moved for leave to amend its answer to present three additional defenses:

1) Sovereign immunity in death claims.

2) Failure to state a claim (again, presumably, on the sovereign immunity theory).

3) Nonresponsibility of the State due to lack of funds to construct and maintain safety features at the site of the accident, if any were required.

The court denied all four motions and in its order recommended to counsel and to this Court that the issues thus raised be considered by this Court prior to trial under its supervisory authority. It appearing that the interests of the State, the District Court, the county in which the court sits, and the litigants might best be served by the exercise of that authority, this Court accepted jurisdiction.

Two issues are presented:

(1) May the State maintain a defense of sovereign immunity against claims arising from death?

(2) May the State maintain a defense of "financial feasibility or discretion" in a highway injury or death case?

We conclude neither defense may be maintained.

The Forty-third Legislative Assembly enacted the Montana Comprehensive State Insurance Plan and Tort Claims Act (Ch. 380, L.1973; Sections 82-4301 through 82-4335, R.C.M.1947, hereinafter referred to as the Tort Claims Act), which provided in section 82-4310:

"Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietary function."

This section was unamended at the time of the accident (March 1, 1976) from which the claims in litigation arose. The Act included the State under its definition of "governmental entity", section 82-4302(3). It does not define "tort" but the title refers to "tort claims" and it does define "claim", section 82-4302(7):

" 'Claim' means any claim against a governmental entity, for money damages only, which any person is legally entitled to recover as damages because of personal injury or property damage caused by a negligent or wrongful act or omission committed by any employee of the governmental entity while acting within the scope of his employment, under circumstances where the governmental entity, if a private person, would be liable to the claimant for such damages under the laws of the state of Montana."

It also defines "personal injury" (for which a "claim" is authorized) as including " * * * any injury resulting from * * * any bodily injury, sickness, disease or death * * *." This legislation needs little construction or interpretation. The legislature waived the State's sovereign immunity as to death claims, and was unquestionably empowered to do so in the absence of a constitutional prohibition. Mills v. Stewart, 76 Mont. 429, 247 P. 332 (1926); Coldwater v. State Highway Commission, 118 Mont. 65, 162 P.2d 772 (1945); Kaldahl v. State Highway Commission, 158 Mont. 219, 490 P.2d 220 (1971).

The State insists, however, that this waiver cannot be applied because (1) Art. II, Section 18, Montana Constitution, sets limits on the power of the legislature to waive sovereign immunity and wipes out previous waivers, and (2) it waives sovereign immunity on claims for injury to a person but not for death. Effective July 1, 1975, after passage and approval of the Tort Claims Act and prior to the incident that gave rise to these actions, Art. II, Section 18 provided:

"The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature."

At the time of the incident, the legislature had passed no legislation, with or without the required two-thirds vote of both houses, providing for sovereign immunity in death cases. No interpretation whatever is required to reach the conclusion that this section prohibits the legislature from asserting sovereign immunity in the cases specified, unless and until it does so by the required vote. It does not in any way...

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