U.S. Fidelity and Guar. Co. v. Camp, 91-281

Decision Date30 April 1992
Docket NumberNo. 91-281,91-281
Citation253 Mont. 64,831 P.2d 586
PartiesUNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff and Appellant, v. Mike CAMP, as Phillips County Sheriff, and Randall Kim Broadbrooks, Defendants and Respondents.
CourtMontana Supreme Court

Joseph M. Sullivan, Emmons & Sullivan, Great Falls, for plaintiff and appellant.

Norman H. Grosfield, Utick & Grosfield, Helena, for defendants and respondents.

HUNT, Justice.

Plaintiff/appellant United States Fidelity and Guaranty Company brought an action in negligence to recover moneys paid to its insured for damages resulting from a fire in an apartment building. The suit named as defendants Randall Broadbrooks, who allegedly started the fire, and Phillips County Sheriff Mike Camp. Broadbrooks was an escapee from the Phillips County Jail at the time of the fire. Broadbrooks never appeared in the action and a default judgment was entered against him. Defendant/respondent Camp moved for summary judgment which was granted by the Phillips County District Court. It is from this grant of summary judgment that USF & G appeals. We affirm.

The following issues are raised on appeal:

1. Did the District Court err in finding that as a matter of law the USF & G negligence action must fail because the required element of proximate cause could not be proven?

2. Did the District Court err in determining that Sheriff Camp was immune from suit under the judicial immunity statute found at Sec. 2-9-112, MCA?

3. If Sheriff Camp enjoyed judicial immunity, was it waived to the extent that there was insurance coverage for the liability?

The appellant made a number of arguments under issue two concerning the District Court's determination that the respondent enjoyed judicial immunity for the alleged acts of negligence. Appellant argued that a sheriff would not, under these circumstances, be entitled to rely on the immunity granted to the judiciary. Additionally, appellant contended that a finding that the sheriff had judicial immunity violated the separation of powers doctrine as set forth in Article III, Section 1, of the Montana Constitution, and that such a finding reinvoked sovereign immunity in contradiction to Article II, Section 18, of the Montana Constitution. Concerning issue three, the appellant argued that pursuant to this Court's recent decision in Crowell v. School District No. 7 of Gallatin County (1991), 247 Mont. 38, 805 P.2d 522, any immunity was waived to the extent that insurance coverage existed for the liability. We will not address issues two and three in this opinion, as our decision concerning the first issue requires that we affirm the decision of the District Court.

On September 23, 1987, Randall Broadbrooks pled guilty to Driving While Under the Influence of Alcohol, Fourth Offense, and Driving While an Habitual Traffic Offender. The District Court sentenced Broadbrooks to one year in the county jail, but suspended all but three months of the sentence. The three months not suspended were to be served under a work release arrangement in which Broadbrooks would be released from the jail each week day from 8 a.m. to 5 p.m. in order to continue his employment as janitor for the Phillips County Courthouse complex.

The Phillips County Sheriff's Department had no set procedure for work release inmates. The sheriff's department did not attempt to monitor Broadbrooks during release time to ensure that he remained within the confines designated in the work release arrangement. The method used to keep track of the time at which Broadbrooks left in the morning and returned in the evening was not entirely accurate. In fact, not all of the law enforcement officers of the sheriff's department were even aware of when Broadbrooks was to be released and returned, or where he could go while he was released.

On the evening of Friday, October 2, 1987, Broadbrooks did not return to the jail at 5 p.m. as required by the work release arrangement. At this point, the officer on duty called the undersheriff to inform him that the inmate had not returned. The undersheriff directed the officer on duty to try and locate the inmate and incarcerate him.

The officer on duty went to Broadbrooks' apartment and knocked on the door, but did not find Broadbrooks. The officer then went to the home of a female friend of Broadbrooks, but he was not there. The officer checked a local bar in Malta where he learned that Broadbrooks had been in earlier and purchased a six-pack of beer and left. After supper, the officer again checked with Broadbrooks' female friend and went back to Broadbrooks' apartment but did not locate him. A warrant to enter Broadbrooks' apartment was not sought and no additional members of either the sheriff's department or the city police were involved in the search.

During the early morning hours of Saturday, October 3, 1987, at approximately 2:30 a.m., a fire broke out at Broadbrooks' apartment. The origin of the fire has not been judicially determined, but for purposes of this appeal both parties concede that the fire was started when a cigarette Broadbrooks was smoking fell and ignited a couch in the apartment. Broadbrooks awoke at some point after the fire had started and was able to escape without injury.

The officer who had been on duty the previous evening when Broadbrooks failed to return to the jail again went to the home of Broadbrooks' female friend at about 4 a.m. on Saturday morning. She informed the officer that Broadbrooks was passed out in her apartment. The officer did not take Broadbrooks into custody at this time, but did inform the sheriff's office of his whereabouts. Finally, around 9 a.m. on Sunday the undersheriff went to the residence of Broadbrooks' female friend and took him into custody.

Appellant brought this action as a subrogation claim to recover amounts paid to appellant's insureds, the owners of the apartment building damaged by the fire. Appellant named Broadbrooks as a defendant, alleging that he was negligent in starting the fire. Appellant also brought suit against Mike Camp, as Phillips County Sheriff, for negligently allowing Broadbrooks to escape and for negligently failing to apprehend Broadbrooks once the escape was discovered several hours after the fact. Broadbrooks did not appear in the action and a default judgment was entered against him on March 28, 1990. Respondent Camp moved for summary judgment on November 28, 1990, and appellant filed a cross-motion for partial summary judgment on December 28, 1990. On March 15, 1991, the District Court granted respondent's motion for summary judgment and denied appellant's motion for partial summary judgment. Following a motion to reconsider, which the District Court denied, a judgment in favor of the respondent was entered on April 26, 1991.

Did the District Court err in finding that as a matter of law the appellant's negligence action must fail because the required element of proximate cause could not be proven?

Appellant contends that while the issue of proximate cause was before the District Court by way of the respondent's motion for summary judgment, the District Court did not even reach the issue of proximate cause. It is clear from reading the memorandum, opinion, and order of the District Court that the primary basis for granting respondent's motion for summary judgment was the District Court's finding that the respondent enjoyed judicial immunity. However, the court also stated that based upon the reasoning in several recent decisions of this Court, the respondent was entitled to summary judgment on the grounds that appellant could not meet the required element of proximate cause necessary to maintain an action for negligence. The court did not elaborate on the issue of proximate cause as a basis for granting the summary judgment motion because the court had "already determined that Defendant's Motion for Summary Judgment should be granted on the grounds of judicial...

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