No. 89-168
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
CECIL P. MILLER,
Plaintiff and Appellant,
-VS-
FALLON COUNTY,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Fallon,
The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald W. Molloy argued; Anderson, Edwards & Molloy,
Billings, Montana
For Respondent:
Calvin J. Stacey argued; Keefer, Roybal, Hansen, Stacey
& Walen, Billings, Montana
Denzil R. Young argued, Fallon County Attorney, Baker,
Montana
For Amicus Curiae:
William L. Crowley; Boone, Karlberg & Haddon, (David
'-R. Brown), Missoula, Montana
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Submitted: September 25, 1989
Degided: December 13, 1989
Justice Fred J. Weber delivered the Opinion of the Court.
This appeal arises from an order by the District Court,
Sixteenth Judicial District, Fallon County, Montana. The
District Court granted summary judgment in favor of defen-
dant, concluding that plaintiff's suit against Fallon County
was barred because the county was statutorily immune from
suit. Plaintiff appeals. We affirm.
The issues on appeal are:
1. Did the District Court err in grantinq summary
judgment in favor of defendant Fallon County by determining
that, pursuant to 5 2-9-111, MCA, the County is immune from
suit?
2. Is § 2-9-111, MCA, constitutional?
Cecil Miller was injured when his truck, an 18-wheeler,
failed to negotiate a curve on a county road on November 3,
1982. Mr. Miller was an independent trucker. He and his
wife were carrying a load of lumber from Townsend, Montana,
to Minnesota and elected to use secondary roads since they
did not possess the required permits to travel on the inter-
state highway. South of Baker, Montana, Mr. Miller began
traveling on a two-lane graveled county road. He approached
a curve known as "Russley's Corner," which was unsigned at
that time. Mr. Miller lost control of the truck on this
curve and went off the road and down an embankment.
Mr. Miller's wife, Linda, was also injured in this
accident. She previously filed suit against her husband and
his alleged employer. That case was appealed to this Court
and decided in Miller v. Fallon County (1986), 222 Mont. 214,
721 P.2d 342.
Cecil Miller subsequently filed suit on his own behalf
against Fallon County, alleging negligence in construction,
maintenance, and signing of the county road. Defendant moved
nity. We begin therefore by explaining the county's system
for road construction and maintenance.
Fallon County is divided into three road districts.
The Fallon County Board of Commissioners (Board) is in charge
of the county roads, with one commissioner assigned to each
district. Mr. Delane Beach, a member of the Board, was
assigned to the road district in which Mr. Miller's accident
occurred. At the time of the accident, the road foreman for
this district was Mr. Harold Wiseman.
In applying § 2-9-111, MCA, to the present case, Fallon
County is a "governmental entity" and the Board of Commis-
sioners is its "legislative body." Pursuant to subsection
(2) the County is immune from suit for an act or omission of
its Board of Commissioners or a "member, officer. or agent
thereof." Therefore, on its face, the language of the stat-
ute grants immunity to Fallon County for any act or omission
of its Board of Commissioners. Additionally, it grants
immunity to the County for acts or omissions of Mr. Beach, a
member of the Board, or for acts or omissions of agents of
the Board.
In the present case, it is not disputed that the road
foreman, Mr. Wiseman, was an agent of the Board.
"Agency" is defined as follows:
Agency is the fiduciary relation which results
from the manifestation of consent by one person to
another that the other shall act on his behalf and
be subject to his control, and consent by the other
so to act.
Restatement of the Law of Agency 2d 5 1 (1958). Additional-
ly, the agency status of the road foreman is contemplated by
statute. Section 7-14-2121, MCA, authorizes the Board to
divide the county into road districts and place a road super-
visor in charge of each district. Section 7-14-2122, MCA,
delineates the road supervisor's responsibilities, which are
to be performed " [ulnder the direction and control of the
board.'' We conclude that Mr. Wiseman was clearly an agent of
the Board. We point out that this agency status could be
extended to the road crews pursuant to our recent holding in
State of Montana ex rel. Eccleston v. Montana Third Judicial
,
District Court (Mont. 1989), - P.2d - 46 St.Rep. 1929,
(custodians of school district are agents of school board for
purposes of immunity under S 2-9-111, MCA) . The plain lan-
guage of the statute therefore extends immunity to Fallon
County for acts or omissions of the Board, Mr. Reach, and Mr.
Wiseman.
In its grant of summary judgment the District Court
relied on this Court's previous holdings in W.D. Const. Inc.
v. Bd. of County Com'rs (1985), 218 Mont. 348, 707 P.2d 1111
(county and commissioners were immune from suit arising out
of commissionersf approval of a plat for subdivision); Barnes
v. Koepke (1987), 226 Mont. 470, 736 P.2d 132 (county and
commissioners were immune from suit which arose out of com-
missioners' decision not to renew a hospital lease) ; Bieber
v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St-Rep.
1218 (county and commissioners were immune from suit for
commissioners' termination of county employee). Recently,
the decision of Peterson v. Great Falls School District 1 and
A (Mont. 1989), 773 P.2d 316, 46 St.Rep. 880, has been is-
sued, which follows the holdings of the previous cases. In
Peterson this Court determined that the school district was
immune from suit for the discharge of a custodian.
Plaintiff attempts to distinguish these cases by stat-
ing that all prior cases involved a decision by the Board,
which was found to be a legislative act. He urges that the
present case does not involve a decision by the Board.
Plaintiff contends that the only involvement the Board of
for summary judgment asserting immunity as an affirmative
defense. That motion was granted.
Did the District Co,urterr in granting summary judgment
in favor of defendant Fallon County by determining that,
pursuant to § 2-9-111, MCA, the County is immune from suit?
Plaintiff's complaint alleged that Fallon County was
negliqent in designing, constructing, maintaining and signing
the corner where the accident occurred. Defendant Fallon
County moved for summary judgment, claiming immunity. The
District Court granted summary judgment in favor of defendant
pursuant to 5 2-9-111, MCA, which provides:
Immunity from suit for legislative acts and
omissions. (1) As used in this section:
(a) the term "governmental entity'' includes
the state, counties, municipalities, and school
districts;
(b) the term "legislative body" includes the
legislature vested with legislative power by Arti-
cle V of The Constitution of the State of Montana
and any local governmental entity given legislative
powers by statute, including school boards.
(2) A governmental entity is immune from suit
for an act or omission of its legislative body or a
member, officex, or agent thereof.
(3) A member, officer, or agent of a legisla-
tive body is immune from suit for damages arising
from the lawful discharge of an official duty
associated with the introduction or consideration
of legislation or action by the legislative body.
(4) The immunity provided for in this section
does not extend to any tort committed by the use of
a motor vehicle, aircraft, or other means of
transportation.
The issue before this Court is whether the District
Court was correct in determining that the acts or omissions
in the present case fit within this statutory grant of immu-
Commissioners had in the construction, maintenance, and
signing of the road where the accident occurred, was the
initial decision to build the road. He urges that the
present case only involves acts or omissions of employees.
Thus, he distinguishes the present case on a factual basis.
As a legal argument, plaintiff also urges that the language
of the statute only grants immunity for legislative acts, not
administrative acts. He contends that the present case only
involves administrative acts.
We conclude that plaintiff's contentions fail both
factually and legally. Altho.ugh plaintiff contends that as a
matter of fact, the only involvement by the Board of Commis-
sioners was the decision to build the road, deposition testi-
mony belies this contention. The deposition of the County
Commissioner in charge of this road, Mr. Delane Beach, and
the deposition of Mr. Harold Wiseman, demonstrate rather
extensive and continuous involvement by the Board of Commis-
sioners in road construction and maintenance.
Because factually this involvement unequivocally estab-
lishes the county's right to claim immunity in this case, we
set out this involvement in some detail. In substance this
testimony established that all three commissioners determined
priorities on new construction, on any major project, and on
budgeting. The commissioners as a group made decisions
regarding implementation of state recommendations regarding
roads, bridges, etc.
In regard to new construction, Mr. Beach stated that he
gave general direction to the road crews, such as directing
that a road be constructed along section lines. While many
details were left up to the judgment of the road foreman and
road crews, Mr. Beach also participated in specific decisions
regarding the width and slope of certain roads. In regard to
maintenance, Mr. Beach testified that he drove all the roads
in his district twice a year, identifying roads, bridges, and
culverts which needed repair. This information was then
given to the road foreman, along with any complaints Mr.
Beach had received. He stated that he would work closely
with the road foreman and the crew in deciding where repairs
were needed, and that he would personally follow up to be
sure the actual repairs were made. Mr. Beach stated that the
road foreman was to use his judgment as to which corners
required signs, and once the decision to sign was made, the
sign was to be in accordance with the Traffic Control Manual.
Mr. Beach also stated that he was the individual who
gave the order for the reconstruction of Russley's Corner in
the mid-1970's. He stated that it was he who determined that
the corner needed a "gentler" curve. Additionally, Mr.
Wiseman's testimony indicated that Mr. Beach was personally
involved in decisions regarding the construction and mainte-
nance of the roads. We conclude that any acts or omissions
complained of in the present case were acts or omissions of
the Board, its members, and its agents.
On a legal basis, plaintiff contends that only legisla-
tive acts are immune, not administrative acts. He urges that
the acts complained of in the present case are administrative
rather than legislative or discretionary. Plaintiff suggests
the effect of granting immunity in this case is to create
blanket immunity to the county. He urges this is not the
intent of S 2-9-111, MCA.
In urging this distinction between legislative and
administrative acts, plaintiff refers the Court to the lan-
guage of the Montana Constitution, Article 11, Section 18,
and § 2-9-102, MCA.
Article 11, Section 18, states:
State subject to suit. The state, counties,
cities, towns, and all other local governmental
entities shall have no immunity from suit for
injury to a person or property, except as may be
specifically provided by law by a 2/3 vote of each
house of the legislature.
Section 2-9-102, MCA, states:
Governmental entities liable for torts except
as specifically provided by legislature. Every
governmental entity is subject to liability for its
torts and those of its employees acting within the
scope of their employment or duties whether arising
out of a governmental or proprietary function
except as specifically provided by the legislature
under Article 11, section 18, of The Constitution
of the State of Montana.
Plaintiff urges that any statute granting immunity is an
exception to the general rule of liability and must be nar-
rowly construed, citing R.M. v. State (1982), 200 Mont. 58,
649 P.2d 425.
The present Montana Constitution, enacted in 1372,
abolished sovereign immunity through Article 11, Section 18,
yet empowered the legislature to reestablish immunity by a
two-thirds vote of each house. In 1977 the legislature
enacted 2-9-111, MCA, and also amended S 2-9-102, MCA, to
its present form. By enacting § 2-9-111, MCA, the legisla-
ture, by its power, granted immunity to counties.
Although the statute is entitled "Immunity from suit
for legislative acts and omissions," our previous interpreta-
tions of this statute have rejected the contention that only
acts or omissions which are legislative in nature are immu-
nized. In Bieber, this Court stated,
Bieber initially argues that the District
Court incorrectly assessed the meaning of §
2-9-111, MCA, and its applicability to the Commis-
sioners' action. He asserts that the statute
represents a narrow exception to the constitution-
ally mandated rule of no sovereign immunity and as
such its protection is limited to purely "legisla-
tive" acts and excludes day to day "administrative"
responsibilities such as the firing of a county
employee.
Appellant asks that we recognize the distinc-
tion between administrative acts which should not
be protected and legislative acts which should be
protected. We decline to give credence to appel-
lant's argument because the plain language of the
statute makes no such distinction. As we have
stated, this Court will not delve outside the plain
meaning of the words used in a statute. See,
W.D. Construction, 707 P.2d at 1113 and Barnes, 736
P.2d at 134.
Bieber, 759 P.2d at 146, 147.
Recently, in Peterson we reiterated that "the action of
the legislative body need not be legislative in nature to
afford immunity." Peterson, 773 P.2d at 318. Peterson
involved the termination of a school district custodian by an
administrative assistant. The discharge was ratified by the
school board at a subsequent meeting. We noted that
$ 2-9-111, MCA, clearly extended immunity to school dis-
tricts, school boards, and their agents. We also found it
significant that school districts are statutorily authorized
to hire and dismiss custodians pursuant to $ 20-3-324(2),
MCA. Thus we concluded that the immunity statute clearly
applied to that situation.
The present case is analogous to Peterson, and we
conclude that the holding in Peterson is controlling. As
previously established, the plain language of the stat.ute
grants immunity to the county for actions of its Board, and
the Board's members and agents. This immunity is fortified
i n the present case since by statute the Board is assessed
many statutory powers and duties in relation to the county
roads. See 7-14-2101 through 2125, MCA. These statutorily
mandated duties necessitate extensive involvement by the
Board and its agents in decisions regarding road construction
and maintenance.
We conclude that the acts or omissions complained of
are acts by the Board of Commissioners, or by a member, or by
its agent, for which Fallon County is immune from suit.
Accordingly, we affirm the grant of summary judgment in favor
of Fallon County.
I1
Is 5 2-9-111, MCA, constitutional?
Plaintiff contends that § 2-9-111, MCA, is unconstitu-
tional because it denies him full legal redress, which is a
fundamental right. He urges that granting immunity to coun-
ties classifies victims of torts according to whether they
are injured by the state, county, or a private party, which
is a denial of equal protection. He contends that since this
classification affects a fundamental right, it requires a
compelling state interest. He urges there is no compelling
state interest.
In Peterson we addressed this same contention, stating
that the right involved was access to the courts, rather than
full legal redress. Since access to the courts is not a
fundamental right, Bieber, 759 P. 2d at 148; Linder v. Smith
(Mont. 1981), 629 P.2d 1187, 1190, 38 St.Rep. 912, 915, the
State need only show a rational relationship. As in Peter-
- we reaffirm the determination that the statute at issue
son,
has previously passed the rational relationship test. We
also note that this Court has recently decided that f.ul1
legal redress is not a fundamental right under the Montana
Constitution. See Meech v. Hillhaven West, Inc. (Mont.
2-9-111, MCA, is constitutional.
Affirmed.
We Concur: A
Justices
J u s t i c e J o h n C. Sheehy, dissenting:
F o r t h e same reason I expressed in t h e case of Peterson
v. G r e a t F a l l s S c h o o l Dist. No. 1 and A (19891, - Mont. ,
7 7 3 P.2d 3 1 6 , 319, I d i s s e n t t o t h e f o r e g o i n g Opinion.
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Justice v
I c o n c u r i n t h e f o r e g o i n g d i s s e k y o f J u s t i c e Sheehy.
Justice