Werre v. David

• Decision Date: 15 April 1996
• Docket Number: No. 95-145,95-145
• Citation: 275 Mont. 376,913 P.2d 625
• Parties: Joann R. WERRE and John D. Werre, Plaintiffs, Respondents and Cross-Appellants, v. Margaret R. DAVID, Individually and as Personal Representative of the Estate of Kenneth C. David, Defendants and Appellants.
• Court: Montana Supreme Court

Page 625

913 P.2d 625

275 Mont. 376

Joann R. WERRE and John D. Werre, Plaintiffs, Respondents and Cross-Appellants, v. Margaret R. DAVID, Individually and as Personal

Representative of the Estate of Kenneth C. David,

Defendants and Appellants.

No. 95-145.

Supreme Court of Montana.

Submitted Nov. 16, 1995.

Decided March 14, 1996.

Rehearing Denied April 15, 1996.

Appeal from District Court of the Eleventh Judicial District, In and for the County of Flathead; The Honorable Robert S. Keller, Judge Presiding.

Daniel W. Hileman; Murray & Kaufman, Kalispell (argued), for Appellants.

Joe Bottomly; Bottomly Law Offices, Kalispell (argued), for Respondents.

Linda Mangel, Seattle, Washington, Joan Jonkel, Missoula, amicus curiae for Northwest Women's Law Center.

David R. Paoli, Missoula, amicus curiae for Montana Trial Lawyers Association.

GRAY, Justice.

Margaret R. David (Margaret), individually and as personal representative of the Estate of Kenneth C. David (Estate), appeals from the judgment entered by the Eleventh Judicial District Court, Flathead County, on a jury verdict awarding Joann R. Werre (Joann) and John D. Werre (John) damages in the amount of $250,000. Joann cross-appeals, but requests that we not address the issues she raises unless we reverse and remand for a new trial as a result of Margaret's appeal. We affirm and, therefore, deem the cross-appeal withdrawn.

We restate the issues on appeal as follows:

1. Did the District Court err in denying Margaret's motion for a directed verdict on the basis that whether Joann's claim was time-barred pursuant to § 27-2-216, MCA, was a question of fact for the jury?

2. Did the District Court err in concluding that the tolling provisions of § 27-2-216, MCA, include negligence claims based on intentional sexual abuse?

3. Did the District Court abuse its discretion in denying Margaret's motion to edit Dr. Dennis Malinak's deposition testimony to exclude reference to his conversation with Margaret?

4. Did the District Court abuse its discretion in excluding certain evidence regarding Joann and John's marital problems?

5. Did the District Court err in denying Margaret's motion for a directed verdict on the negligence claim against her individually?

6. Did the District Court err in instructing the jury on causation?

7. Did the District Court abuse its discretion in denying Margaret's motion for a new trial?

Margaret married Ben Carkuff (Ben) in 1945 and they had four children, including Joann. When Joann was approximately six to eight years old, she was sexually abused by Ben's brother, whom she called Uncle Francis, during weekly visits to Ben's parents' home. The abuse by Uncle Francis stopped in 1957 when the family's weekly visits to Joann's paternal grandparents' home ceased after Margaret divorced Ben. Margaret married Kenneth David (Kenneth) in 1957 and they and Margaret's children, including Joann, moved from Minnesota to Kalispell, Montana.

When Joann was approximately twelve to fourteen years old, Margaret asked Kenneth to "give" Joann sex education. She took all of her children except Joann out for ice cream so that Kenneth could be alone with Joann. Kenneth had sexual intercourse with Joann on this occasion. After that incident, Kenneth also fondled Joann several times.

Joann married John when she was seventeen years old. She did not tell anyone about the abuse by either her uncle or Kenneth until 1989, when she told John about Uncle Francis' abuse. John recommended that Joann see Carol Lee (Lee), a clinical social worker, to discuss the abuse.

Lee began counseling Joann in May of 1989. She originally diagnosed Joann as having an adjustment disorder with mixed emotional features. In November of 1989, Lee further diagnosed Joann with post-traumatic stress disorder. She concluded that Joann's mental disorders were caused by both the abuse by Uncle Francis and the abuse by Kenneth and, further, that either abuse could have caused Joann's mental disorders.

Joann confronted Margaret and Kenneth regarding the sexual abuse by Kenneth and Uncle Francis in November of 1989. Kenneth did not deny that he sexually abused Joann. Kenneth died in July of 1990.

In December of 1989, Joann became an inpatient at Glacier View Hospital (Glacier View), where she remained for approximately twenty-two days. During that time, Dr. Dennis Malinak, a psychiatrist, treated her. Dr. Malinak diagnosed Joann with a borderline personality disorder and an adjustment disorder; he later agreed with Lee's diagnosis of post-traumatic stress disorder. Dr. Malinak opined that both the abuse by Uncle Francis and the abuse by Kenneth were causal factors in Joann's disorders and, further, that Kenneth's abuse was a major cause of those disorders.

On September 3, 1992, Joann filed a complaint against Margaret individually and as personal representative of Kenneth's Estate. As subsequently refined in the Pretrial Order, Joann alleged the intentional tort of sexual abuse against Kenneth and intentional or, alternatively, negligent conduct by Margaret in aiding Kenneth's sexual abuse and failing to use due care to protect her. During the jury trial, the District Court directed a verdict in Margaret's favor on Joann's intentional tort claim against her individually. The jury found that Kenneth sexually abused Joann and that Margaret was negligent; it awarded $250,000 in damages. Margaret appeals in both her individual capacity and her capacity as personal representative of Kenneth's Estate. Additional facts are set forth below where necessary for our resolution of the issues.

1. Did the District Court err in denying Margaret's motion for a directed verdict on the basis that whether Joann's claim was time-barred pursuant to § 27-2-216, MCA, was a question of fact for the jury?

Joann filed this action on September 3, 1992. Margaret contends that the undisputed evidence establishes that Joann discovered that her injuries were caused by the childhood sexual abuse by Kenneth prior to September of 1989. On that basis, she argues that the District Court was required to direct a verdict in her favor as a matter of law under § 27-2-216, MCA.

A directed verdict is proper only when there is a complete absence of any evidence which would justify submitting an issue to a jury, and all inferences which can be drawn from the evidence must be considered in a light most favorable to the opposing party. Pierce v. ALSC Architects, P.S. (1995), 270 Mont. 97, 107, 890 P.2d 1254, 1260 (citing Jacques v. Montana Nat'l Guard (1982), 199 Mont. 493, 649 P.2d 1319). A district court must deny a motion for a directed verdict if substantial conflicts in the evidence exist. Fox Grain and Cattle Co. v. Maxwell (1994), 267 Mont. 528, 533, 885 P.2d 432, 435 (quoting Simchuk v. Angel Island Community Ass'n (1992), 253 Mont. 221, 833 P.2d 158).

Section 27-2-216(1)(b), MCA, provides, in relevant part:

(1) An action based on intentional conduct brought by a person for recovery of damages for injury suffered as a result of childhood sexual abuse must be commenced not later than:

....

(b) 3 years after the plaintiff discovers or reasonably should have discovered that the injury was caused by the act of childhood sexual abuse.

In order for the District Court to have properly denied Margaret's motion for a directed verdict in this regard, there must be evidence of record that Joann did not discover the causal connection between Kenneth's abuse and her mental disorders until after September 3, 1989.

It is true, as Margaret contends, that the record contains evidence indicating that Joann connected Kenneth's abuse with her psychological problems prior to September 3, 1989. On cross-examination Joann testified that she did not tell a male therapist she saw in 1970 about Kenneth's sexual abuse because she distrusted men as a result of that abuse. Joann also conceded on cross-examination that, when she first saw Lee in May of 1989, she made some connection between her need for counseling and her childhood sexual abuse.

However, Joann presented evidence indicating that she did not discover that her mental disorders were connected to Kenneth's abuse until after September 3, 1989. She testified that, although she was always aware that she had been sexually abused, she did not connect her abuse with her psychological problems until November of 1989. Lee opined that Joann began to connect the sexual abuse by Kenneth with her mental disorders after she confronted Margaret and Kenneth in November of 1989. Dr. Malinak testified that, when Joann was hospitalized at Glacier View in December of 1989, she was in the process of connecting her sexual abuse with her mental disorders. Moreover, Herman Androes (Androes), a clinical psychologist and therapist testifying on behalf of Margaret and the Estate, conceded on cross-examination that he agreed with the conclusions of Lee and Dr. Malinak in this regard.

This review of the record demonstrates the substantial conflicts in the evidence regarding when Joann discovered that her injuries were caused by the childhood sexual abuse she experienced, for purposes of applying the time bar contained in § 27-2-216, MCA. It is within the province of the jury to resolve conflicts in the evidence. Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d 971, 976. Therefore, based on the record before us, we conclude that the time at which Joann discovered a connection between Kenneth's sexual abuse and her mental disorders was a question of fact for the jury. Accordingly, we hold that the District Court did not err in denying Margaret's motion for a directed verdict on the basis of § 27-2-216(1)(b), MCA.

2. Did the District Court err in concluding that the tolling provisions of § 27-2-216, MCA, include negligence claims based on intentional sexual abuse?

Margaret argues that the plain language of § 27-2-216, MCA, refers only to intentional conduct and, therefore, the statute does not...