Walden v. Yellowstone Elec. Co.

• Decision Date: 18 May 2021
• Docket Number: DA 20-0462
• Citation: 2021 MT 123,487 P.3d 1
• Parties: Robert Edward WALDEN and Sylvan Walden, Plaintiffs and Appellees, v. YELLOWSTONE ELECTRIC CO. and Thomas C. Newell, Defendants and Appellants.
• Court: Montana Supreme Court

487 P.3d 1

2021 MT 123

Robert Edward WALDEN and Sylvan Walden, Plaintiffs and Appellees,

v.YELLOWSTONE ELECTRIC CO. and Thomas C. Newell, Defendants and Appellants.

DA 20-0462

Supreme Court of Montana.

Submitted on Briefs: March 31, 2021

Decided: May 18, 2021

For Appellants: Matthew F. McLean, Kelsey Bunkers, Crowley Fleck PLLP, Bozeman, Montana

For Appellees: Jesse Myers, MurphyMyers PLLC, Billings, Montana, Terrance L. Toavs, Law Office of Terrance L. Toavs, Wolf Point, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Yellowstone Electric Company and Thomas C. Newell appeal a Montana Seventh Judicial District Court summary judgment decision and order granting attorney's fees, costs, and sanctions. We affirm.

¶2 We restate the issues on appeal as follows:

Issue One: Whether the District Court erred in granting summary judgment.

Issue Two: Whether the District Court erred in its interpretation of the term "flag person" as used in § 60-7-204, MCA.

Issue Three: Whether the District Court erred in awarding attorney's fees and costs under §§ 25-10-303 and -201(2), MCA.

Issue Four: Whether the District Court abused its discretion in awarding sanctions for discovery abuse and spoliation of evidence.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Around 12:00 p.m. on December 21, 2016, Bob Walden and Sylvan Walden (the Waldens) were moving cattle north on a portion of Montana Highway 24. They had placed homemade "Caution Cattle Ahead" signs with bright orange lettering on the side of the road two miles north and 3.7 miles south of the moving herd. Sylvan Walden (Sylvan) was on the side of the road a mile in front of the herd in a pickup truck, hazard lights flashing, with a stock trailer. Bob Walden (Bob) was on horseback trailing the heifers.

¶4 Thomas C. Newell (Newell) was driving a Chevrolet truck (the Chevy) owned by Yellowstone Electric Company (YECO) southbound on Highway 24, which has a posted speed limit of 70 miles per hour. Newell testified that he did not see the "Caution Cattle Ahead" signs. Newell stated in his affidavit that he did see Sylvan in the pickup truck but thought that Sylvan was simply having vehicle trouble or waiting for someone. Newell stated that he was headed uphill and applied the brakes as soon as he saw the herd of cows. Newell subsequently plowed into the livestock, resulting in the death of ten heifers and the totaling of the Chevy driven by Newell.

¶5 The Waldens’ counsel sent a notice of representation letter and settlement demand for the loss of their cattle to YECO's insurance on February 5, 2017. Several days later, in response to a letter from its insurance carrier, YECO mailed in the keys and executed title to the Chevy so it could be salvaged. The Waldens continued to correspond with YECO's insurance carrier, offering to settle their claims for $15,750 plus prejudgment interest in August 2017. Neither YECO nor its insurance carrier made any counteroffer or response, and the Waldens filed suit on November 8, 2017.

¶6 YECO asserted affirmative defenses including contributory and/or comparative negligence and negligence per se, alleging that the Waldens had violated § 60-7-204, MCA, which requires the use of "flag person escorts" when trailing cattle on a public highway. On January 3, 2018, YECO filed a counterclaim against the Waldens for the value of the totaled Chevy, asserting negligence and negligence per se on the basis of § 60-7-204, MCA.

¶7 The Waldens requested an inspection of the Chevy and subsequently served a Notice of Inspection. YECO responded that the inspection was not "proportionate to the issues in the case" or relevant and stated that it "no longer has possession, custody, or control over the 2013 Chevy Silverado." According to Newell, no part of the Chevy had been preserved after the accident. The Waldens did not receive access to the vehicle or the federally-required event data recorder that would have recorded information such as speed, steering, and braking for the five seconds prior to impact. See 49 C.F.R. pt. 563 (2011).

¶8 During discovery, YECO made numerous objections and refused to respond to many of the Waldens’ written discovery requests. In response to the Waldens’ Notice of Deposition, YECO served 18 pages of objections. During deposition of Newell, YECO's M. R. Civ. P. 30(b)(6) designee, YECO's counsel frequently objected, more than 180 times according to the District Court's count.¹

¶9 The Waldens filed a motion for summary judgment. They submitted their own affidavits as well as an affidavit from a retired Montana Department of Livestock employee opining that the Waldens had complied with all safety protocol and had provided adequate warning to oncoming traffic. Following a hearing, the District Court issued an order granting the Waldens’ motion. YECO then filed a Writ of Supervisory Control and Request for Stay and the District Court stayed proceedings until YECO's writ was denied on August 6, 2019. On October 7, 2019, the parties stipulated that the Waldens’ damages totaled $20,528.29. After YECO informed the Waldens that it intended to appeal the summary judgment order, the Waldens filed a motion requesting attorney's fees and another requesting sanctions for discovery abuses and intentional spoliation of evidence. Following a hearing, the District Court entered an order imposing sanctions on YECO and awarding attorney's fees and costs to the Waldens. On September 4, 2020, the Waldens received a judgment against YECO for $68,128.74.

STANDARD OF REVIEW

¶10 This Court reviews a district court's summary judgment ruling de novo. Tacke v. Energy West, Inc. , 2010 MT 39, ¶ 16, 355 Mont. 243, 227 P.3d 601 (citation omitted). We review interpretation and application of statutes for correctness. In re T.H. , 2005 MT 237, ¶ 35, 328 Mont. 428, 121 P.3d 541 (citation omitted). Imposition of sanctions and awards of costs are reviewed for abuse of discretion.

Total Indus. Plant Servs. v. Turner Indus. Grp., LLC , 2013 MT 5, ¶ 61, 368 Mont. 189, 294 P.3d 363 (citation omitted); Maloney v. Home & Inv. Ctr., Inc. , 2000 MT 34, ¶ 27, 298 Mont. 213, 994 P.2d 1124 (citation omitted).

DISCUSSION

¶11 Issue One: Whether the District Court erred in granting summary judgment.

¶12 YECO first challenges the District Court's grant of summary judgment in favor of the Waldens. The District Court determined that Newell and YECO, as Newell's employer, were negligent as a matter of law in causing the death of the Waldens’ cows and rejected YECO's counterclaim for the value of the Chevy. YECO argues that summary judgment was inappropriate, contending that there were unresolved factual disputes as to whether the Waldens or YECO were negligent, including whether the Waldens’ warning signage, preceding vehicle, and heifers were in plain sight.

¶13 Summary judgment is appropriate when the moving party demonstrates an absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Albert v. City of Billings , 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704 (citation omitted). Reasonable inferences are to be drawn in favor of the non-moving party. Fisher v. Swift Transp. Co. Inc. , 2008 MT 105, ¶ 12, 342 Mont. 335, 181 P.3d 601 (citation omitted).

¶14 A negligence claim requires showing that a party has caused damages by breaching a duty. Henricksen v. State , 2004 MT 20, ¶ 20, 319 Mont. 307, 84 P.3d 38 (citation omitted); Brohman v. State , 230 Mont. 198, 201, 749 P.2d 67, 69 (1988). Because of the prevalence of factual issues in negligence actions, such claims are frequently unsuitable to resolution at summary judgment. See Peterson v. Eichhorn , 2008 MT 250, ¶ 24, 344 Mont. 540, 189 P.3d 615. However, summary judgment may be appropriate when reasonable minds "could not draw different conclusions from the evidence." See Larchick v. Diocese of Great Falls-Billings , 2009 MT 175, ¶ 55, 350 Mont. 538, 208 P.3d 836 (internal quotation omitted); Brohman , 230 Mont. at 201, 749 P.2d at 69 (noting that while negligence issues are "[o]rdinarily ... better determined at trial," the Court will affirm summary judgment where "it is clear that a party has breached a duty and caused an accident." (internal quotation omitted)).

¶15 The primary issue in this case was whether Newell breached a duty by driving into the Waldens’ herd. Drivers in Montana have a:

duty to look not only straight ahead but laterally ahead as well and to see that which is in plain sight . Furthermore, a motorist is presumed to see that which he could see by looking, and he will not be permitted to escape the penalty of his negligence by saying that he did not see that which was in plain view .

Chambers ex rel. Chambers v. Pierson , 266 Mont. 436, 441, 880 P.2d 1350, 1353 (1994) (emphasis added) (internal quotation omitted).

¶16 The District Court viewed photos and watched a video taken of the section of roadway at issue, concluding that the herd would have been in Newell's plain view. YECO counters that a Montana Vehicle Crash Report indicated that the "crash happened on a [h]illcrest going into the sun" thereby creating a factual dispute of whether the herd was in plain sight. The Waldens argue that the report may not be relied upon because it was never admitted into evidence and constitutes hearsay. YECO responds that the Waldens themselves submitted the report in support of their summary judgment motion and referenced it in their complaint, constituting a waiver of any objection to admissibility.

¶17 However, we need not resolve this issue because Montana drivers also have a duty to proceed "in a careful and prudent manner and at a reduced rate of speed no greater than is reasonable and prudent under the conditions existing at the point of operation, taking into account the amount and character of traffic, visibility , weather, and roadway conditions." Section 61-8-303(3), MCA (emphasis added). Furthermore, we have noted that "[d]rivers constantly face" hazards such as "black ice,...