NO. 90-182
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
MELISSA HEDGES, a minor by and through PATRICIA HEDGES, her
Gaurdian ad Litem,
Plaintiff and Appellant,
SWAN LAKE AND SALMON PRAIRIE SCHOOL DISTRICT NO. 73; CAROL FIELD,
and DOES 1 AND 10,
Defendants and Respondents.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.B. McNeil, Judge
COUNSEL OF RECORD: MA ? -2 1>q9
,
For Appellant:
H. James Oleson argued; Oleson L kt,
Montana.
For Respondent:
Todd A. Hammer argued; Warden, Christiansen, Johnson
& Berg, Kalispell, Montana.
Submitted: May 9, 1991
Decided: May 23, 1991
Filed:
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff, Melissa Hedges, was injured on school grounds
during school hours. She brought suit against the School District
and the teacher who was in charge at the time of the accident. The
District Court granted defendants' motion for summary judgment
based on immunity under 5 2-9-111, MCA, and held that such immunity
could not be waived by the purchase of liability insurance.
Plaintiff appeals. We affirm in part and reverse in part.
There are two issues raised on appeal:
1. Whether the School District and the teacher are immune
under 5 2-9-111, MCA.
2. Whether the purchase of liability insurance by the School
District waives immunity under 5 2-9-111, MCA.
In 1987 twelve year-old Melissa Hedges (Ms. Hedges) was a
student at the Swan Lake Elementary School in Lake County, Montana.
Respondent, Carol Field (Ms. Field), a teacher, was supervising the
playground and had instructed Ms. Hedges to mark where shot puts
landed. Ms. Hedges was marking a previous shot put when she was
struck by another shot put which had been thrown by Ms. Field. Ms.
Hedges was in clear view of Ms. Field at the time in question.
Ms. Hedges was injured and this lawsuit resulted.
Defendants moved for summary judgment on the grounds of
immunity under 5 2-9-111, MCA. The matter was presented on oral
argument to the District Court. The parties also argued the issue
of whether immunity had been waived by the defendants1 purchase of
I 1
liability insurance. The School District had purchased
comprehensive liability insurance coverage. The District Court
granted defendantsf motion for summary judgment and held the
defendants were immune under 5 2-9-111, MCA, and that the purchase
of liability insurance did not waive immunity. Ms. Hedges appeals
that decision.
Whether the School District and the teacher are immune under
5 2-9-111, MCA.
Section 2-9-111, MCA, provides (in part):
(1) As used in this section:
(a) the term "governmental entityw includes ...
school districts;
(b) the term "legislative bodyw includes .
. . 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,
officer, or agent thereof.
(3) A member, officer, or agent of a legislative
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.
Ms. Hedges concedes that the School District is a governmental
entity as defined in the statute, and that the School Board is the
legislative body, of the School District. However, she contends
that despite its immunity from suit, the School District remains
liable for the torts of Ms. Field, who is not immunized from suit,
pursuant to 5 2-9-201, et seq., MCA, the Comprehensive State
Insurance Plan, which requires joinder of the School District and
renders it liable to defend and indemnify Ms. Field for any damages
6 1
awarded. Ms. Hedges maintains that Ms. Field's discharge of duties
was not ttassociated
withw action of a legislative body as required
by the language of 5 2-9-111(3), MCA, and thus she is not immune.
Ms. Hedges contends there is no connection between Ms. Field's
conduct and any action by the School Board.
Defendants maintain that under this Court's holdings in
State ex rel. Eccleston v. Montana Third Judicial Dist. Ct. (1989),
240 Mont. 44, 783 P.2d 363, and cases therein cited, the School
District and the teacher are immune from liability.
Our decision in Crowell v. School Dist. No. 7 (Mont. 1991),
805 P.2d 522, 48 St.Rep. 81, is controlling. Crowell, also
involved a school teacher. Crowell held that the governmental
entity, the school district, was immune from suit for an act or
omission of its agent, and that the physical education teacher was
its agent. As a result Crowell concluded that the school district
was immune from suit for the actual omissions of its teacher agent.
Crowell further held that the teacher was immune under 5 2-9-111,
MCA , stating:
We conclude that any negligence on the part of [the
teacher] was associated with action by the School
District in that it was the District which established
programs and curriculum, including the specific course
of instruction and which offered physical education
classes as a part of such instruction. We agree with the
conclusion of the District Court that the claim for
damages arose from the lawful discharge by Mr. Allen of
an official duty associated with actions of the School
District and its legislative body. We hold that Mr.
Allen, the physical education teacher, is immune from
suit under 5 2-9-111, MCA. (Emphasis added).
Crowell, 805 P.2d at 524. We find no factual or legal distinction
between Crowell and the present case.
R 1
We hold that both the School District and the teacher are
immune from suit under 5 2-9-111, MCA.
Whether the purchase of liability insurance by the School
District waives immunity under 5 2-9-111, MCA.
In Crowell we held that the purchase by the school district
of liability insurance waives its immunity to the extent of the
coverage granted by the pertinent insurance policies. After an
extensive review of Montana legislative history and case law,
Crowell concluded:
We emphasize that Montana's statutory provisions are
unique. We conclude that the Montana Legislature has
reached the followinq conclusion: while a school
district is granted immunity of various types, a school
district still is granted authority to purchase insurance
which may have the effect of waiver of immunity to the
extent of the insurance proceeds. We do not find it
necessary to imply a waiver, as the intention of the
Legislature is clear. That intention is reemphasized
by its authorization of tax levies sufficient to pay for
insurance premiums. That intention is consistent with
the legislative theory that a claim against a school
district should be paid in a manner similar to payment
required of a private party. We conclude that the
Legislature has declared its intent to allow a school
district to waive immunity to the extent of the insurance
proceeds.
Crowell, 805 P.2d at 533.
We conclude that the Crowell holding cannot be distinguished
factually or legally from the present case. We therefore hold that
the purchase by the School District of liability insurance waived
its immunity to the extent of the coverage granted by pertinent
insurance policies.
We remand this case to the District Court for a determination
t 9
of the applicable insurance coverage and for further proceedings
consistent with this opinion.
We Concur: /--+'
/"
Justices
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
This case is an example of how far this Court has come by
blindly following precedent--no matter how tortured and defective
the reasoning on which that precedent is based. The statute
intended to protect public employees during activities associated
with the introduction of legislation or action of the legislative
body, now protects teachers who hit students in the head with 12
pound steel balls while supervising track practice. The
legislaturels effort to enable local governments to protect
themselves against the liability provided for in Art. 11, 5 18, of
the Montana Constitution, is now construed to be a waiver of
immunity that the legislature never created in the first place.
This incredible decision is just the most recent example of
this Court's disregard for the Constitution, traditional rules of
statutory construction, and the plain language of the statutes
which are being construed.
And toward what end is such blatant judicial activism
directed?
The result of today1 case, and the precedent, which according
s
to the majority, compels today's conclusion, is to protect
wrongdoers and ignore innocent victims, even when they are
12-year-old children who sustain brain damage by the gross
negligence of the adults under whose supervision they have been
placed. (Unless, of course, the employer of the wrongdoer chooses
to waive this generous protection.)
More significant than the poor legal reasoning which has
brought us to this point is the fact that it has been carved into
Montana's common law for a bad social purpose. Hopefully this dark
age for Montana jurisprudence which began with Peterson v. Great
Falls School Dist. No. 1, 237 Mont. 376, 773 P.2d 316 (1989), will
soon be brought to a merciful end by the intervention of the
Montana Legislature.
I concur with the result of the majority opinion. Based upon
this Court's decision in Crowell v. School Dist. No. 7 of Gallatin
County, 805 P.2d 522, 48 St.Rep. 81 (1991), I agree that this case
should be remanded to the District Court for further proceedings
consistent with that opinion. However, I disagree with the
reasoning of the Crowell decision. It is clear to me that the
legislature did not authorize the waiver of immunity when it
authorized local governments to purchase insurance. It authorized
local governments to purchase insurance because it never did create
the kind of local governmental immunity that has been found to
exist by this Court.
I dissent from that part of the majority's opinion which holds
that 5 2-9-111, MCA, clearly and unambiguously provides immunity
to Carol Field for the acts complained of by the plaintiff.
Senate Bill No. 43, which was introduced in the 45th
Legislature in 1977, became what is now 5 2-9-111, MCA.
8
That bill also included amendments to 5 2-9-102, MCA, and
enacted 5 2-9-112, MCA (granting judicial immunity) ; 5 2-9-113, MCA
(granting gubernatorial immunity); and 5 2-9-114, MCA (granting
immunity to local executives). It was entitled:
AN ACT TO SPECIFICALLY PROVIDE THE STATE, COUNTIES,
TOWNS, AND ALL OTHER LOCAL GOVERNMENT ENTITIES AND THE
OFFICERS, AGENTS, AND EMPLOYEES OF THOSE ENTITIES
IMMUNITY FROM SUIT FOR INJURY TO A PERSON OR PROPERTY IN
CERTAIN CASES IN ACCORDANCE WITH THE PROVISIONS OF
ARTICLE 11, SECTION 18 OF THE CONSTITUTION OF THE STATE
OF MONTANA; AMENDING SECTION 82-4310, R.C.M. 1947.
(Emphasis added.)
significant that the bill's title indicated to other
legislators that immunity was being granted in only "certain
cases,11 not in all cases, because Art. V, 5 11(3), of the
Constitution of Montana, provides :
Each bill . .
. shall contain only one subject, clearly
expressed in its title. If any subject is embraced in
any act and is not expressed in the title, only so much
of the act not so expressed is void.
Furthermore, the title of that bill is important in
determining the intent of the legislature when 5 2-9-111 was
enacted. Section 1-2-102, MCA, requires that the intent of the
legislature is to be pursued if possible.
With those requirements in mind, 5 2-9-111, MCA, must be
considered in the context of the other forms of governmental
immunity which were authorized by the same Senate Bill No. 43.
Under § 2-9-112, MCA, a member or an agent of the judiciary
is only immune from suit for damages arising from the duties
associated with judicial actions.
Under 5 2-9-113, MCA, the state and governor are only immune
from suit for actions involving vetoing or approving bills or
calling the legislature into session.
Under 5 2-9-114, MCA, a local government or its executive
officers are only immune from suit where activities are associated
with vetoing or approving ordinances or other legislative acts or
calling the legislative body into session.
It is clear from reading these sections in combination with
each other that what the legislature had in mind was to immunize
legislators, judges, and executives for activities related to the
enactment of laws. To interpret those sections in that fashion
would also be consistent with Senate Bill No. 43's title, which
indicated that it was providing for local governmental immunity in
"certain cases,ll--not all cases. The legislators who voted for
in
that bill must be shocked by the manner in which it has been
applied by this Court.
Section 2-9-111(2), MCA, provides that the governmental entity
itself is immune from suit for the acts or omissions of its
members, officers, or agents. The immunity provided for in that
section appears to be very broad. However, the legislature saw fit
to distinguish the circumstances under which immunity could be
provided to the members, officers, or agents of the legislative
10
body in their individual capacities. In subsection ( 3 ) , the
legislature provided:
A member, officer, or agent of a legislative 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.
It is obvious from any reasonable interpretation of these two
sections that liability of individual governmental employees is
granted on a much more limited basis than liability for the
government itself. If not, it would have been a simple matter for
the legislature to provide in subsection (2) that "a governmental
entity and its employees are immune from suit from an act or
omission of its legislative body, or a member, officer, or agent
thereof." The legislature chose not to do that. Therefore, this
Court should not do so.
In his concurring opinion to Crowell v. School Dist. No. 7,
Chief Justice J. A. Turnage correctly points out that:
"In the construction of a statute, the office of the
judge is simply to ascertain and declare what is in terms
or in substance contained therein, not to insert what has
been omitted or to omit what has been inserted." Section
1-2-101, MCA. This is the rule of law governing
statutory construction, and it is an appropriate and
proper rule. There is no place for individual preference
or desire to become the rule of law when the Court
interprets statutory language.
agree with Chief Justice Turnage1s conclusion regarding the
proper role of this Court. However, I disagree that this Court has
adhered to that rule of statutory construction when interpreting
3 2-9-111, MCA. If it did, it could certainly not have concluded
that when a teacher throws a 12 pound steel ball and hits a student
under her supervision on the head, that teacher's act was ''the
lawful discharge of an official duty associated with the
introduction or consideration of legislation or action by the
legislative body. "
The result in this decision, furthermore, violates the rule
of construction recognized by this Court in B.M. v. State, 200
Mont. 58, 649 P.2d 425 (1982), where we held that every act of the
legislature expanding statutory immunity must be clearly expressed.
In discussing § 2-9-111, MCA, this Court, in Eccleston v.
Dist. Court, 240 Mont. 44, 54, 783 P.2d 363, 369 (1989), stated:
[W]e are not asserting in this opinion that the statute
is unequivocally clear at first glance. Indeed, several
interpretations of 3 2-9-111, MCA, have been argued in
the line of cases that have come before us since the
statute's adoption.
I would suggest that if the legislature's intent to expand
governmental immunity was not clear at first glance, then according
to all appropriate rules of construction, this Court had no
business taking a second look. This Court's recent line of
decisions granting total immunity to local governments has not only
turned traditional rules of construction upside down, but has had
the same impact on the human values that used to be reflected in
our law.
I would reverse the District Court by holding that 5 2-9-
111 (3) , MCA, does not grant immunity to the defendant, Carol Field,
in this case, and to the extent that any previous decision is
inconsistent with that holding, I would reverse that decision.
We concur in the foregoing concurrence and dissent of Justice
b
Trieweiler.