Superior Enterprises v. Montana Power Co.

• Decision Date: 20 June 2002
• Docket Number: No. 01-381.,01-381.
• Citation: 49 P.3d 565,2002 MT 139,310 Mont. 198
• Parties: SUPERIOR ENTERPRISES, LLC, a Montana limited liability corporation, Plaintiff and Appellant, v. The MONTANA POWER COMPANY, a Montana corporation, Defendant and Respondent.
• Court: Montana Supreme Court

49 P.3d 565

2002 MT 139

310 Mont. 198

SUPERIOR ENTERPRISES, LLC, a Montana limited liability corporation, Plaintiff and Appellant, v. The MONTANA POWER COMPANY, a Montana corporation, Defendant and Respondent.

No. 01-381.

Supreme Court of Montana.

Submitted on Briefs December 6, 2001.

Decided June 20, 2002.

John E. Bohyer, Fred Simpson, Phillips & Bohyer, P.C., Missoula, Montana, For Appellant.

W. Wayne Harper, Attorney at Law, Butte, Montana, For Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Plaintiff, Superior Enterprises, LLC, brought this action in the District Court for the Fourth Judicial District in Mineral County to recover for fire damage to its sawmill which it claimed was caused by the electrical lines of the Respondent, Montana Power Company (MPC). Following a trial by jury, a verdict in favor of MPC was returned. Superior Enterprises appeals the District Court's refusal to exclude an expert witness which MPC had not disclosed prior to trial. We reverse and remand for a new trial.

¶ 2 The sole issue on appeal is whether the District Court abused its discretion when it allowed Ralph Parkin to testify as an expert witness even though he had not been previously disclosed by MPC as an expert witness.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Superior Enterprises, LLC, owned a sawmill located near Superior, Montana. On November 26 or 27, 1996, a fire destroyed several buildings, industrial equipment and inventory at the mill site. Superior Enterprises claims the fire was caused by damaged electrical lines. Three to four days before the fire, a chip truck snagged communication lines overhanging the road adjacent to the plant. Those communication lines were attached to the same utility pole to which the electrical service lines were attached. Superior Enterprises' theory at trial was that MPC negligently failed to inspect the damaged lines, failed to disconnect the power, and failed to advise Superior Enterprises to hire an electrician to inspect the lines even though Superior Enterprises had contacted the MPC emergency service number on two separate occasions.

¶ 4 At trial, Superior Enterprises offered expert opinion evidence from two witnesses, Bruce Goodwin, deputy state fire marshal, and Don Armintrout, a private fire investigator. Both witnesses expressed the opinion that the damaged electrical service lines were the cause of the fire. During the presentation of its evidence, MPC called retired fire chief Ralph Parkin as a witness. Counsel for Superior Enterprises objected based on MPC's failure to disclose Parkin as a witness prior to trial. MPC responded that Parkin was being called as an impeachment witness. The District Court overruled the objection and Parkin was allowed to testify. Superior Enterprises had listed Parkin as a lay witness in its pretrial order and on its witness disclosure list prior to trial, but decided not to call Parkin as a witness at trial. Parkin's son and daughter-in-law were seated as members of the jury panel.

¶ 5 On April 9, 2001, the jury returned a verdict for MPC and the District Court subsequently entered judgment in MPC's favor. On May 10, 2001, Superior Enterprises filed a Notice of Appeal of the District Court's judgment.

STANDARD OF REVIEW

¶ 6 The district court has the discretion to rule on the admissibility of evidence. We review those rulings for an abuse of discretion. Massman v. City of Helena (1989), 237 Mont. 234, 241-42, 773 P.2d 1206, 1211.

DISCUSSION

¶ 7 Did the District Court abuse its discretion when it allowed Ralph Parkin to testify as an expert witness even though he had not been previously disclosed by MPC as an expert witness?

¶ 8 Superior Enterprises contends that the District Court abused its discretion when it allowed Ralph Parkin, a retired fire chief, to testify for MPC. Parkin offered testimony which contradicted Superior Enterprises' theory of its case. Superior Enterprises asserts that the testimony was inadmissible pursuant to the requirement that when asked, a party must disclose its anticipated expert witnesses prior to trial. Rule 26(b)(4), M.R.Civ.P. As relief, Superior Enterprises urges this Court to order a new trial.

¶ 9 MPC, on the other hand, claims that Parkin was called as an impeachment witness. Because Parkin had been a witness disclosed by Superior Enterprises in response to formal discovery and in its final pretrial order, MPC contends that calling Parkin did not constitute surprise to Superior Enterprises. MPC also asserts that Superior Enterprises did not object to the expert nature of Parkin's testimony, and, therefore, may not raise that objection for the first time on appeal.

¶ 10 Because a proper objection is necessary to preserve an issue for appeal, we will first consider the adequacy of Superior Enterprises' objection. MPC contends that Superior Enterprises' only objection to the testimony of Parkin was based on MPC's failure to disclose him as a witness, not as an expert witness. Without objecting to the expert nature of Parkin's testimony, MPC claims Superior Enterprises failed to preserve the issue on appeal. ¶ 11 In order to preserve an objection to admission of evidence for purposes of appeal, the objecting party must make a timely objection and must state "the specific ground of objection, if the specific ground was not apparent from the context;...." Rule 103(a)(1), M.R.Evid. An objection is sufficiently specific "if it is accompanied by a reasonably definite statement of the grounds for the objection." Kizer v. Semitool, Inc. (1991), 251 Mont. 199, 207, 824 P.2d 229, 234 (citing Edward W. Cleary et al., McCormick on Evidence § 52, at 128 (3rd ed.1984)).

¶ 12 Here, Superior Enterprises made the following objection:

The Court: Mr. Bohyer, your objection to this witness?

Mr. Bohyer: Yes, Your Honor. In the pretrial order, this witness is not listed by the Defendant as one of the witnesses that they intend to call. I would point out that in the pretrial order, in terms of witnesses, we've identified a bunch of them, including adverse. We also identified Mr. Parkin on our list. He was not called. The Defendant did not list this witness as one of its own to call in its case in chief and I object on that basis.

¶ 13 Superior Enterprises' objection advised the District Court that MPC had never disclosed that it intended to call Parkin as a witness, expert or otherwise. The District Court was apparently aware that Parkin was testifying as an expert based on the following exchange:

Mr. Parkin: Speaking with some of the folks that were there, they indicated that at that time that

The Court: Excuse me. When I overrule the objection, let me tell you what the rules are. You are allowed to form a conclusion as an expert witness based on what people have told you, but you're not allowed to repeat what they have told you. Do you understand what I am saying? [Emphasis added.]

Therefore, in the context of this case, we decline to draw a distinction between the failure to disclose a witness and the failure to disclose an expert witness, and we conclude the objection was adequate.

¶ 14 We must next determine whether MPC's failure to disclose Parkin as a witness was prejudicial to Superior Enterprises. Although characterized by MPC as an impeachment witness, Parkin offered testimony regarding the cause of the fire and directly refuted the testimony of Superior Enterprises' two expert witnesses, Bruce Goodwin and Don Armintrout. He testified as follows:

Q: Okay. And with your knowledge of fires and the heat that would burn a timber of that size, could that wire have been involved in the fire at the time that that beam burned?

A: It appears that there's still insulation on the wiring, and I don't know, it looks likes [sic] it's aluminum wiring. And with as much heat was involved in that building, the insulation should have been burnt off completely and probably the wire separated or melted down, if it's aluminum. It doesn't take much heat to melt aluminum.

....

Q: Likewise, could you have a beam with that kind of insulation on it if it—Could that beam and insulation or wire had [sic] burned together with the heat that was there?

A: The insulation, well, certainly would have burned off if it would have been that much fire to burn that kind of— That's a big beam.

....

Q: ... I've been told this is a textbook picture of how a wire could work its way into a beam and spark and slowly burn it up.

Have you even seen a wire work its way into a beam and or put a notch like that in a beam and slowly burn it up?

A: Not to my knowledge on any fires that I've been on.

Q: Have you even seen a notch like that in a beam that wasn't from a precut in the beam to fit something else, in your experience?

A: Not in my experience, no Q: And, again, would there be insulation on the wires that are in that beam?

A: Most certainly should be.

Q: Certainly should be?

A: Should be, yes.

Q: Okay. And if they were there and had insulation on them and were involved in the fire, would they have insulation on them, still?

A: No. It would be melted off.

Parkin's testimony relates information which is not within common knowledge or experience of lay people and is, therefore, in the nature of expert testimony. Expert witnesses offered by the defendant who simply refute the plaintiff's theory of the case are not "impeachment" witnesses. If they were, everyone called by the defendant would be an impeachment witness. As an expert witness, Parkin should have been disclosed.

¶ 15 Prior to...