NO. 86-288
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
MICHAEL N . SEVALSTAD ,
Plaintiff,
-vs-
JOHN GLAUS,
Defendant, Third-Party Plaintiff
and Appellant,
-vs-
LESTER NEIFERT,
Third-party Defendant and Respondent.
APPEAL FROM: The District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable R.D. McPhillips, Judge presidina.
COUNSEL OF RECORD:
For Appellant:
Crowley, Haughey, Hanson, Toole & Dietrich; Donald
L. Harris, Billings, Montana
For Respondent:
Jardine, Stephenson, Blewett & Weaver; William D.
Jacohsen, Great Falls, Montana
Submitted on Briefs: Dec. 11, 1986
MA-${ 2 Decided: May 26, 1987
1987
Filed:
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
John Glaus appeals an order from the Ninth Judicial
District, Toole County, granting respondent Lester Neifert's
motion for summary judgment. We affirm.
Two issues are presented for our review:
1. Did the District Court err when it granted
Neifert's motion for summary judgment?
2. Does State ex rel. Deere v. District Court (Mont.
1986), 730 P.2d 396, 43 St.Rep. 2270, require that summary
judgment be affirmed?
Michael N. Sevalstad was injured on October 7, 1983,
when his 1978 Chevrolet Suburban, in which he was a passen-
ger, was involved in an automobile roll-over on Interstate
15, approximately ten miles south of Shelby, Montana.
Sevalstad was riding with John Simonich and the appellant and
driver, John Glaus. The three men were traveling to Sun-
burst, Montana, from Butte, in anticipation of goose hunting
on October 8, 1983. Glaus stated, during deposition, that he
had consumed at least eight beers preceding the incident.
Glaus also stated Sevalstad fell asleep approximately one
hour before the accident. Additionally, Glaus testified that
Sevalstad's vehicle was heavily loaded, its headlights were
shining upward, rather than illuminating the highway. At the
time of the accident, Glaus was driving between sixty and
sixty-five miles per hour.
On October 7, 1983, respondent Neifert was also travel-
ing north on Interstate 15. Neifert testified that at ap-
proximately 11:OO p.m., he hit a "rather large deer" which
ran in front of his vehicle. Neifert was approximately two
miles south of the Marias River or nine miles from Shelby
when, ". . . a deer just flat out [ran] right in front of me,
and I hit the deer, and I hit him on the driver's side corner
and he flew back somewhere, and I just went on and stopped
and got out, and I went back to look for the deer and didn't
find him." Neifert stated he was driving fifty-five miles
per hour at the time of the accident.
After striking the deer, Neifert stopped, turned on his
flashing lights, and searched the area behind his truck for
approximately ten minutes. Although he found a piece of his
truck's grill, Neifert did not find a deer on the Interstate.
Neifert returned to his pickup and observed that his radiator
was leaking badly. While he assessed the damaged vehicle,
Neifert noticed a vehicle approaching from the south. Re-
spondent stated the vehicle moved into the left lane and
passed the accident scene. Although Neifert testified he
watched the highway illuminated by the oncoming vehicle's
lights, he did not observe an obstruction on the interstate.
Neifert proceeded to Shelby to repair his vehicle and to
contact the Montana Highway Patrol.
A patrolman was dispatched from Conrad to investigate
Neifert's accident. While en route on Interstate 15, the
patrolman found appellant Glaus's overturned vehicle approxi-
mately ten miles south of Shelby. Glaus testified that as he
drove toward the Marias River he came upon a deer carcass
lying near the centerline of the northbound lane. Glaus
stated he did not see the carcass until it was "twenty to
thirty feet away." Glaus then turned sharply to the right,
back to the left, and finally back to the right. The vehi-
cle overturned in the right ditch and Sevalstad was seriously
injured. Sevalstad claims Glaus's negligence caused his
injuries.
Following the October 7, 1983, accident, Glaus was
charged with driving while under the influence. Glaus plead-
ed guilty to careless driving in violation of S 61-8-302,
MCA.
Sevalstad brought a complaint for negligence against
Glaus and Neifert on January 3, 1985. Glaus subsequently
filed a cross-claim for contribution against Neifert. On
October 21, 1985, Sevalstad dismissed with prejudice his
complaint against Neifert . Neifert then moved for summary
judgment with respect to Glaus's cross-claim. The District
Court granted Neifert's motion for summary judgment.
Following a jury trial in February 1986, the jury found
that Glaus acted negligently and was the proximate cause of
Sevalstad's injuries. Sevalstad was awarded damages of
$325,000. Glaus now appeals the District Court's order
granting summary judgment to respondent Neifert.
Two issues are presented for our review.
Issue 1
Did the District Court err when it granted respondent
Neifert's motion for summary judgment?
The standard that an appellate court applies in review-
ing a grant or denial of a motion for summary judgment is the
same as that utilized by the District Court. Kronen v.
Richter (Mont. 1984), 683 P.2d 1315, 1317, 41 St.Rep. 1312.
The standard of review is whether the District Court properly
held there is no genuine issue of material fact and therefore
the moving party is entitled to judgment as a matter of law.
Rule 56 (c), M.R.Civ.P.
The party moving for summary judgment has the burden of
showing the absence of any genuine issue of material fact,
which applicable principles of law entitle him to judgment as
a matter of law. Rennick v. Hoover (1980), 186 Mont. 167,
606 P.2d 1079, 1080-1081. The moving party must make a
showing that excludes any real doubt as to the existence of
any genuine issue of material fact. Harland v. Anderson
(1976), 169 Mont. 447, 548 P.2d 613, 615.
In the case at bar, respondent Neifert, by deposition,
testified he was the sole witness to the deer-automobile
accident. Neifert stated the deer darted in front of his
vehicle, at night on Interstate 15, and the two collided.
Neifert stopped and searched the roadway behind his vehicle.
After finding a piece from his vehicle grill, Neifert then
walked another fifty feet past the point of impact searching
for the deer carcass.
Neifert retreated to his vehicle and attempted to "flag
down" or stop a passing motorist. Neifert testified the
oncoming automobile headlights did not reveal a deer carcass
on the interstate. Further, Neifert testified the oncoming
vehicle traveled safely past the accident scene.
Neifert, upon realizing that his radiator was leaking
badly, left the accident scene and proceeded to Shelby.
Neifert then contacted the highway patrol and advised the
patrol of his accident.
Respondent Neifert, the movant, made a showing that
there is no genuine issue of material fact. Neifert was the
sole witness to the accident. Circumstantial evidence sup-
ports Neifert's testimony. Appellant Glaus does not question
Neifert's version of the facts. However, Glaus contends that
Neifert should have searched more vigorously. Glaus also
contends Neifert should have searched with different means,
with his vehicle lights or his dog, to locate the deer car-
cass. Secondly, appellant Glaus contends Neifert's foot
search was cursory and that he should have remained at the
accident scene, notwithstanding his vehicle's leaking
radiator.
Once the moving party has established that no genuine
issue of material fact exists, the burden shifts to the
opposing party to raise an issue of fact. Krone v. McCann
(1982), 196 Mont. 260, 638 P.2d 397, 399. "The opposing
party's facts must be material and of a substantial nature,
not fanciful, frivolous, gauzy or merely suspicious."
Westlake v. Osborne (Mont. 1986), 713 P.2d 548, 550, 43
St.Rep. 200, citing Silloway v. Jorgenson (1965), 146 Mont.
307, 310, 406 P.2d 167. Implications based on appellant's
allegations are not enough to sustain a motion for summary
judgment. Cheyenne Western Bank v. Young (1978), 179 Mont.
492, 587 P.2d 401, 404.
We hold that appellant Glaus failed to raise a genuine
issue of material fact. Secondly, we hold the District Court
properly found that respondent Neifert did not breach a legal
duty owed to appellant Glaus. " [A]ctionable negligence
arises only from the breach of a legal duty. [Citing cases.]
Therefore, in order for there to be a genuine issue of a
material fact in a negligence case, there must be a duty
imposed upon the defendant and allegations, if proven, that
would support a finding of a breach of the duty." Rennick v.
Hoover (1980), 186 Mont. 167, 606 P.2d 1079, 1081. Respon-
dent Neifert did not breach a legal duty owed to appellant
Glaus.
Issue 2
Does State ex rel. Deere v. District Court (Mont.
1986), 730 P.2d 396, 43 St.Rep. 2270, require that summary
judgment be affirmed?
Sevalstad originally filed his complaint against appel-
lant Glaus and respondent Neifert. Subsequently, Glaus
brought a cross-claim against Neifert for contribution.
Sevalstad then dismissed, with prejudice, his complaint
against Neifert. In doing so, Sevalstad relinquished his
right to recover from Neifert. Rule 41(a), M.R.Civ.P.
Respondent Neifert contends that Deere is controlling
and requires that summary judgment be affirmed. Neifert
contends that when Sevalstad dismissed, with prejudice, his
complaint against Neifert, Glaus's cross-claim against
Neifert became moot.
Prior to Deere, we held that where concurrent
tortfeasors axe affirmatively negligent, there was no right
of contribution or indemnity from one to the other for damag-
es recovered by a plaintiff, except as may be allowed in
comparative negligence cases under 5 27-1-703, MCA. See,
Consolidated Freightways Corp. v. Osier (1979), 185 Mont.
439, 605 P.2d 107; Panasuck v. Seaton (D. Mont. 19651, 277
F.Supp. 979.
In Deere we held that "a joint tortfeasor who settles
with the claimant before judgment on the claim is entered in
a district court is not subject to claims for contribution or
indemnity from the nonsettling joint tortfeasors against whom
judgment may be rendered." Deere, 730 P.2d 396, 402, 43
St.Rep. 2270, 2277. Deere is controlling, notwithstanding
5 27-1-703, MCA, which gives a joint tortfeasor the right to
bring in other tortfeasors in order to insure contribution.
Accordingly, Glaus has no right of contribution against
Neifert, since Neifert was dismissed with prejudice from the
action brought by Sevalstad.
Affirmed.
We concur: