No. 91-525
I N THE SUPREME COURT OF THE STATE OF MONTANA
1993
JONNIE MUSGROVE DAVIS
Plaintiff, Appellant/Cross-Respondent,
THE CHURCH OF J E S U S CHRIST OF LATTER DAY
SAINTS; CORPORATION OF THE PRESIDING BISHOP
OF THE CHURCH OF JESUS CHRIST OF LATTER DAY
S A I N T S ; CORPORATION OF THE PRESIDENT OF THE
CHURCH OF J E S U S CHRIST OF LATTER DAY SAINTS:
R I S K MANAGEMENT DIVISION; KALISPELL STAKE
CENTER O F THE CHURCH OF JESUS CHRIST O F
LATTER DAY SAINTS; and JOHN DOES I-X
(unknown divisions, departments, subsidiaries,
affiliates, associations, whether incorporated
or unincorporated, agents, employees, bishops,
presidents, assigns, or any other entity or
person related to any of the above-named Defendants),
Defendants, Respondents/ Cross Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable -if B. Erickson, Judge presiding.
COUNSEL O F RECORD:
For Appellant:
Dana L. christensen, Kendra L. Kawaguchi, Murphy,
~obinson,Heckathorn & ~hillips,~alispell, Montana
For Respondent:
Kenneth E. OVBrien, Hash, OIBrien & Bartlett,
Kalispell, Montana
Submitted: February 4 , 1993
Decided: May 1 8 , 1 9 9 3
Justice Fred J. Weber delivered the opinion of the Court.
This is an appeal and cross-appeal from an order of the
District Court of the Eleventh Judicial District, Flathead County.
Plaintiff appeals the District Court's summary judgment order
dismissing claims of negligent misrepresentation, fraud, and
intentional infliction of emotional distress. Defendants' cross-
appeal challenges the District Court's failure to dismiss a claim
for breach of fiduciary duty and denial of their request to include
the defense of charitable immunity. Both plaintiff and defendants
appeal the District Courtt ruling on motions in limine. We affirm
s
in part and reverse in part.
The issues for our review are:
1 Did the District Court err in granting summary judgment in
.
favor of the defendants on the claims of fraud and
misrepresentation?
2. Did the District Court err in granting summary judgment in
favor of the defendants on the claim of intentional infliction of
emotional distress?
3. Did the District Court err in failing to dismiss the
breach af fiduciary duty claim?
4. Did the District Court err in its rulings on motions in
limine relative to exclusion of evidence based on the doctrine of
separation of church and state?
5. Did the District court err when it denied the defendantst
motion in limine to exclude physical and mental pain and suffering
as elements of damage relative to the remaining counts alleged by
Davis?
6. Did the District Court err in refusing to allow defendants
to amend their answer to include the defense of charitable
immunity?
On July 20, 1987, Jonnie Musgrove Davis (Davis) sued the
defendants, herein collectively referred to as the Church, to
recover for injuries suffered as a result of a fall on February 25,
2985, on the premises of the Kalispell Stake Center of the Church
of Jesus christ of Latter Day Saints. In addition to the claims of
negligent misrepresentation, fraud and intentional infliction of
emotional distress which are covered by this appeal, Davis also
filed negligence claims,
At the request of the Church, the District Court bifurcated
the negligence claims from the claims involved in this action.
Evidence in the negligence trial showed that Davis had undergone
six separate surgeries to her cervical spine and one surgery to
repair her vocal cord as a result of the injuries sustained in the
February 25, 1985 fall. She received a judgment in excess of
$400,000 which was affirmed by this Court on appeal. See Davis v.
Church of Jesus Christ of Latter Day Saints (1990), 244 Mont. 61,
796 P.2d 181.
The facts encompassed by this appeal relate to the time period
from Davis' accident in 1985 until 1990, with Davis contending that
the Church improperly attempted to dissuade her from pursuing her
claims against it, committed fraud and misrepresentation,
threatened Davis with excommunication, refused to give her Temple
Recommend (an awarded status indicating a member is in good
standing in the Church) and denied her Church callings.
Initially, the Church paid Davisr medical bills. However, on
November 6, 1985, the Church gave ~ a v i s
its last payment, after she
signed a document stating that she was expecting to have no more
hospitalization or major doctor bills, testifked that she
~ a v k
was in severe pain at the time this document was presented to her
as a condition for payment of her bills, that she was not in
complete control of her faculties, and that she was compelled to
sign under duress.
Davis further testified that on two separate occasions during
the summer of 1986, the Church contacted Davis to sign documents
releasing it from any further liability for her injuries. Davis
testified that the Church promised to pay her then-existing medical
bills in return for signing the documents. She testified that she
refused to sign t h e documents because she had ongoing physical
problems. The Church then ceased payment of medical expenses.
In September 1986, after her unsuccessful attempts to obtain
payment of her mounting medical bills, Davis retained legal
counsel. The parties then attempted to reach an agreement for
payment of medical expenses. In February 1987, David McKonkie,
attorney for the Church, sent a letter on behalf of the Church to
Davisr attorney, indicating that the church was willing to pay
medical bills immediately if Davis agreed to travel to Salt Lake
City, Utah for a medical examination. Davisr physician advised
against travel at that time; however, in May 1987, Davis agreed to
this proposal and requested payment of the bills as promised in
McKonkiels letter.
Davis then traveled to Salt Lake City on May 19, 1987 for
examinations by Dr. Louis Schricker, a neurosurgeon hired by the
Church, and another neurosurgeon contacted by her own physician.
The Church's physician concluded in his medical report that 75-80%
of Davis1 condition was related to the accident. Despite further
requests by Davis, the Church did not pay her medical bills at that
point. The Church claims it did not pay at that time because
Davis wanted it to pay future medical bills as well and a
settlement had not been reached between the parties.
Davis testified that Church officials pressured her to tithe
part of her expected settlement to the Church. Davis further
testified that her Temple Recommend was denied because she would
not agree to tithe 10% of her judgment and because she refused to
dismiss her lawsuit against the Church. She further testified she
was denied a Church calling for the same reasons. In her
deposition she stated that one of the Church bishops told her she
was "unworthy and dishonest," that male church members subjected
her to unannounced, private meetings at unusual hours of the day to
discuss the status of her lawsuit, and that Church officials denied
her much-needed church welfare by instructingthe Relief Societyto
discontinue delivery of meals.
After these occurrences, Davis amended her complaint in
October 1989, raising the issues of intentional and negligent
infliction of emotional distress. The District Court dismissed
these claims in its order ruling on defendants' motion for summary
judgment. It also ruled that evidence relating to denial of Temple
Recommend and Church callings could be excluded, but that evidence
relating to threats of excommunication was admissible.
Davis testified that at the time of her injury she was single
with limited financial means. She further testified that since
becoming a member of the Church in 1975, she had been active in
church activities and had tithed or contributed approximately
$75,000 to the Church during the period from 1975 through 1985.
She also testified that during the school year preceding her
accident, she taught two one-hour seminary classes to church youth
each weekday morning, with one class at 6:00 a.m. and the other at
7:00 a.m. She testified that she had previously taught one
seminary class on weekday mornings at 7:00 a.m. for the preceding
five years. Davis also testified that according to the tenets of
the Mormon Church, the Church would take care of her if she gave of
her time. Davis testified that since her injury in 1985 the
continuing nature of her injury has prevented her from returning to
normal employment.
Standard of Review
Summary judgment is proper if there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law. Rule 56(c), M.R.Civ.P. The moving party is
entitled to judgment on the law applicable to established facts.
Musselman v. Mountain West Farm Bureau Mut. Ins. Co. (1991), 251
Mont. 262, 824 P.2d 271. This Court's standard of review for
summary judgment decisions is the same as that used by the trial
court. H i g h a m v. City of Red Lodge (1991), 247 Mont. 400, 807 P.2d
195. When reviewing conclusions of law, we determine whether the
district court's interpretation of the law is correct. Steer, Inc.
v. Department of Revenue (1990), 245 Plant. 470, 803 P.2d 601.
Did the District Court err in granting summary judgment in
favor of the Church on the claims of fraud and misrepresentation?
Davis' claims of fraud and misrepresentation are based upon
the February 1987 letter from David McKonkie on behalf of the
Church, in which the Church promised to pay medical bills if Davis
agreed to travel to Salt Lake City, Utah for an examination by the
Church's doctor. ~ a v i scontends that the Church fraudulently
induced her to travel to Salt Lake City for a medical examination
by the churchvs physician by promising to pay her medical bills
immediately. The Church did not pay Davis1 medical bills after her
examination in Salt Lake City.
A prima facie case of actual fraud must include proof of the
following nine elements: a representation; its falsity; its
materiality; the speaker's knowledge of its falsity or ignorance of
its truth; the speaker's intent that it should be acted upon by the
person and in the manner reasonably contemplated; the hearer's
ignorance of its falsity; the hearer's reliance upon its truth; the
right of the hearer to rely upon it; and the hearer's consequent
and proximate injury or damage. Lee v. Armstrong (1990), 244 Mont.
289, 293, 798 P.2d 84, 87. A claim of misrepresentation or
7
constructive fraud requires similar proof with the exception that
plaintiff need not prove intent to deceive or dishonesty of
purpose. Lee, 798 P.2d at 88.
In order to prove either actual fraud or misrepresentation,
Davis was required to prove there was a representation. The Church
contends there was no "representation o f an e x i s t i n g factm1--that
the promise to pay was a promise to do something in the future
which did not meet the requirements of a representation for this
purpose. W e agree. The D i s t r i c t Court pointed out that McKonkiels
letter constituted a promise to pay in the future. Neither the
making of a promise to pay money in the future nor the failure to
pay constitutes actionable fraud. Roberts v . Mission Valley
Concrete Indus., Inc. (l986), 222 Mont. 268, 721 P.2d 355. We
conclude that the first essential element for the proof of either
fraud or misrepresentation, the making of a representation, was not
present here.
We hold the District Court properly granted summary judgment
in favor of the Church on the issues of fraud and
misrepresentation.
Did the District Court err in granting summary judgment in
favor of the Church on the claim of intentional infliction of
emotional distress?
The District Court entered summary judgment for the Church on
Davisi claim for intentional infliction of emotional distress. On
appeal Davis urges that the facts of this case require recognition
by this Court of intentional infliction of emotional distress as a
cause of action. The controlling Montana case is Frigon v.
Morrison-Maierle, Inc. (1988), 233 Mont. 113, 760 P.2d 57.
In Friaon, the appellant contended that she had set forth
facts sufficient to establish a cause of action for intentional
infliction of emotional distress. Friaon carefully distinguished
between claims of negligent infliction of emotional distress and
intentional infliction of emotional distress. Friaon, 760 P.2d at
63. It is essential that we maintain that distinction. We are not
discussing here any of the elements of negligent infliction of
emotional distress. The appeal is limited to a claimed intentional
infliction of emotional distress. In discussing intentional
infliction of emotional distress, we stated in Friaon:
Emotional distress under Montana law has been and remains
primarily an element of damages rather than a distinct
cause of action.
Friaon, 760 P.2d at 63. The appellant in Friaon sought to have
this Court adopt Restatement (Second) of Torts 5 46 (1965). The
Court concluded that the appellant did not present a case that
merited recognition by this Court of intentional infliction of
emotional distress. Friaon, 760 P.2d at 63. Frison then referred
to comment (d) of the Restatement with regard to the conduct
necessary to impose liability as a separate cause of action,
stating:
. . . Comment "d" to Section 46 of the Restatement
explains the nature of the conduct necessary to impose
liability:
"Liability has been found only where the
conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a
civilized community.1@
Friqon, 760 P.2d at 63-64 (citing Restatement (Second) of Torts, S
46, comment d (1965).
Friqon pointed out that the conduct of the defendant was not
of a type that goes beyond all possible bounds of decency, and
concluded there was insufficient evidence to support a claim for
intentional infliction of emotional distress as a separate cause of
action. Frison, 760 P.2d at 64.
Davis contends that the conduct by the Church which reached
the standard required for intentional infliction of emotional
distress includes the following: denial of Temple Recommend,
denial of a Church calling, pressure to sign releases, threats of
excommunication, statements that Davis was IPunworthy and
dishonest, and efforts attempting to dissuade Davis from pressing
her claim through the courts. The District Court concluded that
the Church's actions clearly did not satisfy the standard for
outrageous conduct required in a tort action for the intentional
infliction of emotional distress. As hereafter held in this
opinion, the evidence of Temple Recommend, Church calling and
excommunication is not admissible as evidence in this case. We
have carefully considered the remaining evidence presented in
support and opposition to summary judgment. Applying the standard
enunciated in Frison, we conclude that the conduct on the part of
the Church does not constitute conduct which goes beyond all
possible bounds of decency, nor can it be regarded as so atrocious
as to be intolerable in a civilized community, The foregoing
10
conclusions are consistent with the holdings in decisions from
other states which have addressed the level of conduct which is
found to be sufficiently outrageous for actionable intentional
infliction of emotional distress. See, e.q. Madsen v. Erwin (Mass,
1985), 481 N.E.2d 1160; and Meroni v. Holy Spirit Asspn for the
Unification of World Christianity (N.Y. Sup. Ct. 1986), 506
N.Y.S.2d 174.
We conclude that the District Court correctly determined t h a t
the conduct exhibited by the Church here was not sufficiently
outrageous to support a separate tort claim for intentional
infliction of emotional distress.
W e h o l d the District Court p r o p e r l y granted summary judgment
in favor of the Church on the claim of intentional infliction of
emotional distress.
Did the District Court err when it failed to dismiss the
breach of fiduciary duty claim?
The Church contends t h a t the D i s t r i c t Court erred i n not
entering summary judgment for the Church on Davis1 claim that the
Church breached its fiduciary duty to her. The Church contends
that the relationship was adversarial rather than fiduciary because
it had no duty to act primarily for Davis' benefit in the pursuit
of her claim for injuries and damages against the Church. We note
that Davis was not represented by an attorney until approximately
nineteen months after her injury--from February 25, 1985 to
September 19 86.
While Davis acknowledges that the relationship between a
member and her church may not create a fiduciary duty in all cases,
she contends that there are facts demonstrating the existence of a
fiduciary relationship, including the major role the Church plays
in all aspects of its members lives, Davis1 tithing of $75,000 to
the Church over a ten year span, and Davis1 other contributions to
the Church as a devoted and faithful member. She further contends
that the deposition evidence establishes t h a t the principles and
practices of the Mormon Church are unique in that it provides a
member with an extended family and a vast network of support for
all problems, including emotional and financial difficulties, and
as such, the Church is aware of all aspects of a member's personal
and financial life. Davis contends that her relationship with the
Church constituted a fiduciary relationship because it involved
such a strong degree of trust and confidence.
It is true that when a fiduciary duty exists, the party in the
stronger position owes an obligation by virtue of the trust
relationship to act in the best interests of the beneficiary. See
Deist v. Wachholz (1984), 208 Mont. 207, 678 P.2d 188. We also
point out that the interaction between a church and its members may
give rise to a confidential relationship which is subject to
scrutiny by the courts for undue influence. See 25 Am.Jur.2d
Duress and Undue Influence 5 44 (1966). However, we do not find it
necessary to construe t h e Legal principles involved in the
fiduciary relationship issue.
Here the District Court first noted that a fiduciary duty
existed from the Church to Davis as a matter of law. We do not
affirm t h a t d e t e m i n a t i o n . The existence of a fiduciary duty
depends upon satisfactory proof of a special relationship. Deist,
678 P.2d at 193. We conclude that such a determination is not
appropriate on summary judgment.
At the same time, the District Court concluded that the
questions of whether a fiduciary relationship existed, whether
Davisi reliance on the relationship was reasonable, and whether her
reliance on the relationship could no longer be justified at a
particular point in time, a11 constitute questions of fact which
cannot be resolved by summary judgment. We affirm the conclusion
of the District Court that these constitute issues of material fact
which preclude summary judgment,
We hold that the District Court properly refused to enter
summary judgment for the Church on the claim of breach of fiduciary
relationship.
IV.
Did the District Court err in its rulings on motions in limine
relative to exclusion of evidence based on the doctrine of
separation of church and state?
Davis contends that the Church used its position of trust and
confidence to manipulate and mislead her and to deter her from
asserting her legal rights. She claims the Church was motivated by
a desire to benefit the Church financially by inducing her to
settle her claims and sign a release.
The First Amendment to the United States Constitution and
Article 11, section 5, of the Montana constitution preserve freedom
of religion under the establishment clause and the free exercise
clause. The Church contends that the conduct described by Davis is
privileged by the free exercise of religion guarantees. Davis in
turn contends that her claims relate solely to violations of
secular laws which do not involve inquiry into protected First
Amendment areas, and as a result, the Church's conduct is not
protected from tort liability.
Although freedom of religious belief is absolute, freedom of
religious conduct may be subject to regulation for the protection
of society. Cantwell v. Connecticut (1940), 310 U.S. 296, 303-04,
60 S.Ct. 900, 903, 84 L.Ed. 1213, 1218. Freedom of religious
beliefs is not an issue here. The primary questions here are
whether denial of Davis' Temple Recommend, denial of her Church
callings, and threats of excommunication are examples of religious
conduct which may be subject to secular regulation, On occasion a
constitutionally compelling governmental interest may outweigh a
free exercise of religion defense and subject the religious conduct
to judicial scrutiny. See, M., Molko v. Holy Spirit Assln for
the Unification of World Christianity (Cal. 1988), 762 P.2d 46 ( t h e
state had a legitimate secular goal in preventing fraud, which was
properly advanced by the courtlsdecision and did not discriminate
between religious or other types of organizations in its
application) .
In Baumgartner v. First Church of Christ, Scientist (Ill. App.
1986), 490 N.E.2d 1309, cert. denied, 479 U.S. 915, 107 S.Ct. 317,
93 L.Ed. 2d 290, the Illinois court considered evidence that a nurse
had deviated from the standard of care of an ordinary Christian
Science practitioner. The Illinois court concluded that a
searching inquiry into Christian Science beliefs and the validity
of those beliefs was barred by the First Amendment because the only
authority to determine whether there was a deviation from "true"
Christian Science practice was the Church itself. Baumqartner, 490
N.E.2d at 1323. The court concluded that the First Amendment
barred the judiciary from considering whether certain religious
conduct conformed tothe standards of a particular religious group.
Baumqartner, 490 N.E.2d at 1323. We agree with the Baumqartner
court, which held that inquiries into the standard of care of a
Christian Science practitioner and whether those standards were met
involved an unpermitted intrusion because the court would be
required to investigate and evaluate religious tenets and
doctrines.
Thus, our initial inquiry requires that we determine whether
this Court is required to investigate and evaluate the beliefs of
the Mormon Church. Davis contends that the Church conduct included
a concerted effort among the Church membership and hierarchy to
pressure her into settling her claim to the Church's benefit.
Davis emphasizes the interest of the state in allowing litigation
of tort claims and prohibiting interference with such litigation,
particularly where that interest is not otherwise protected.
On this issue the District Court granted the Churchss motion
in limine to exclude evidence relating to Temple Recommend and
Church callings. The ~istrictCourt refused to grant the motion as
to threats of excommunication because that conduct occurred prior
to Davis1 retention of legal counsel.
our p r i m a r y question is whether denial or granting of T e m p l e
Recommend and Church callings can properly be regarded as conduct
relating to matters of Church discipline or teachings rooted in
religious belief. We conclude that the answer to this inquiry is
clear-it is impossible to evaluate the matter of Temple Recommend
or Church callings for Davis without an inquiry into and evaluation
of the Mormon religion.
Davis1 deposition testimony established that Temple Recommend
was awarded to members in good standing with the Mormon Church, and
the presence or absence of Temple Recommend had a direct bearing on
the particular illevel glory in Heaveni1
of which Davis would be able
to attain. Such a determination in this case is directly
comparable to the determination required in Baumsartner. In order
to determine if a denial of Temple Recommend to Davis was
appropriate, a court would have to determine whether there had been
a deviation from I*trueli
Mormon doctrine. Such a determination by
a court is prohibited under the First Amendment.
Davis1 testimony established that prior to her accident, her
Church calling was that of a seminary teacher, a position which she
had held for approximately six years prior to the accident.
Clearly, the determination of persons qualified to teach seminary
would require a determination of religious beliefs and practices.
To determine whether denial of a Church calling was rooted in
religious belief, this Court would be required to determine the
religious basis for an ecclesiastical decision. We conclude that
such a determination is directly comparable to the Temple
Recommend, and would constitute a prohibited intrusion because it
would require evaluation of evidence about the internal functioning
of the Church and its doctrines in order to determine if the
Church's actions were proper under the practices and beliefs of the
Mormon Church.
The First Amendment severely circumscribes the role that civil
courts may play, since there is substantial danger that the state
will become entangled in essentially religious controversies. 16A
Am.Jur.Zd, Constitutional Law 5 470 (1979). The United States
Supreme court has addressed the review of church disciplinary
matters in a hierarchical church and clearly adopted a hands-off
policy when courts are asked to review such matters. Serbian
Eastern Orthodox Diocese for the United States of America and
Canada v. Milivojevich (1976), 426 U.S. 696, 96 S.Ct 2372, 49
L.Ed.2d 151. In Serbian Orthodox, the Court concluded:
[Wlhether or not there is room for "marginal civil court
review" under the narrow rubrics of "fraud" or wcollusion"
when church tribunals act in bad faith for secular purposes,
no "arbitrariness" exception--in the sense of an inquiry
whether the decisions of the highest ecclesiastical tribunal
of a hierarchical church complied with church laws and
regulations--is consistent with the constitutional mandate
that civil courts are bound to accept the decisions of the
highest judicatories of a religious organization of
hierarchical polity on matters of discipline, faith, internal
organization, or ecclesiastical rule, custom, or law.
Serbian Orthodox, 426 U.S. at 713, 96 S.Ct. at 2382, 49 L.Ed.2d at
165, (footnote omitted).
In Miller v. Catholic Diocese of Great Falls (1986), 224 Mont.
113, 728 P.2d 794, we considered whether the free exercise of
religion clauses ofthe United States and Montana Constitutions bar
consideration of the tort of breach of the covenants of good faith
and fair dealing in the discharge of the plaintiff Miller for her
failure to maintain discipline in the classroom. In Miller, we
quoted from Wisconsin v. Yoder (1972), 406 U.S. 205, 215, 92 S.Ct.
1526, 1533, 32 L.Ed.2d 15, 25, with the following general statement
on claims to the free exercise of religion:
The essence of all that has been said and written on the
subject is that only those interests of the highest order and
those not otherwise served can overbalance legitimate claims
to the free exercise of religion.
Miller, 728 P.2d at 796.
In Miller, Father Wagner testified as to matters of discipline
involving plaintiff Miller. We stated:
A judicial determination of the presence or absence of
good faith on the part of Father Wagner would require the
court to examine the school's discipline policy as
applied to classroom instruction covering both religious
and nonreligious subjects, and to evaluate Father
Wagner's interpretation and application of that
discipline policy. Such an examination of necessity
would impinge upon elements of the teaching of religion,
or the free exercise of religion. We conclude that
discipline in the classroom is so intertwined with
teaching which in turn is intertwined with religious
principles that a court cannot properly make the
determination requested here without interfering with a
legitimate claim to the free exercise of religion.
Miller, 728 P.2d at 797. In Miller, we concluded that the tort
action for the discharge of plaintiff Miller was barred by the free
exercise of religion clauses of the United States and Montana
Constitutions. Miller, 728 P.2d at 797.
Miller was also referred to at length in St. John's Lutheran
Church v. State Comp. Ins. Fund (1992), 252 Mont. 516, 524, 830
P.2d 1271, 1276-77, in which we concluded that there was no
internal impact or infringement on the relationship between the
church and its pastor in considering the pastor as an employee for
workers' compensation coverage purposes. We distinguished S.
t
John's from Miller by pointing out that the designation of the
pastor as an employee did not involve the State in an internal
matter of the church which would result in a prohibited
interference. St. John's, 830 P.2d at 1277-78.
In Rasmussen V. Bennett (1987), 228 Mont. 106, 741 P.2d 759,
Rasmussen filed a defamation suit alleging that the defendants had
wrongfully disfellowshipped him fromthe Jehovah's Witnesses. This
Court concluded that Rasmussen's claim was barred by the free
exercise of religion clause in both the United States Constitution
and the Montana Constitution, pointing out that this Court would be
violating defendant's right to free exercise of religion if we were
to find defendant's statements actionable. Rasmussen, 741 P.2d at
759. The record was clear that the hierarchical church, the
Watchtower Society, determined that Ray Rasmussen was not
scripturally free to remarry. Therefore, it was not within this
Court's power to question the Watchtower Society's determination.
Rasmussen, 741 P.2d at 759.
Applying the standard used in Miller, we conclude that Davist
tort claim is not a right of the highest order not otherwise served
so as to overbalance the Church's claim to the free exercise of
religion. We hold that evidence of Temple Recommend and Church
callings is barred by the free exercise of religion clauses of the
United States and Montana Constitutions.
In a similar manner, even though the threats of
excommunication were made prior to Davist securing counsel, we do
not find that fact to be controlling. Admission of evidence of
threats of excommunication would directly involve the Court in an
analysis of religious beliefs and practices. Excommunication is an
exercise of fundamental religious beliefs which requires a decision
as to whether or not a party must be dismissed or thrown out as a
church member. Clearly such a determination requires an
investigation and interpretation of religious practices and beliefs
of the Mormon Church, which could be allowed only in the presence
of a constitutionally compelling state interest. On this aspect,
as in Miller, w e again conclude that Davis1 tort claim is not a
right of the highest order not otherwise served so as to
overbalance the Church's claim to the free exercise of religion in
its determination of the rules of excommunication.
We hold that evidence relating to denial of Temple Recommend,
denial of Church callings, and threats of excommunication, are not
admissible because such evidence is barred under the free exercise
clauses of the United States and Montana Constitutions.
Did the District court err when it denied the Church's motion
in limine to exclude physical and mental pain and suffering as
elements of damage relative to the remaining counts alleged by
Davis?
Davis1 claim for breach of fiduciary relationship remains to
be adjudicated. A person who stands in a fiduciary relationship is
subject to liability to the other for harm resulting from a breach
of the duty imposed by the relationship. Restatement (5econd) of
Torts 5 874 (1979).
The Church contends that Davis cannot recover for mental and
physical pain arising in the context of any remaining issues
because she is barred under the doctrine of res judicata. Davis
recovered for physical and mental pain and suffering for the injury
in the previously adjudicated negligence action. The Church
contends that this is res judicata as it is the very same pain she
has previously recovered for under the negligence claim.
To bar a claim on the basis of the doctrine of res judicata,
the following elements must be present: (1) the parties or their
privies must be the same: (2) the subject matter of the action must
be the same; (3) the issues must be the same and must relate to the
same subject matter; and (4) the capacities of the persons must be
the same in reference to the subject and to the issues between
them. Turtainen v. Poulsen (1990), 243 Mont. 355, 360, 792 P.2d
1089, 1092. The District Court found that the second and third
elements of the doctrine were not met here, stating:
...
The issue of emotional distress damages from allegations
of fraudulent misrepresentation and breach of fiduciary duty
is not the same as damages arising from negligently caused
21
personal injuries. Neither the issue or the subject matter is
the same and res judicata would not bar recovery of emotional
distress damages in this portion of the litigation.
Recovery for emotional distress on a claim for breach of fiduciary
duty must be supported by tortious conduct which results in a
substantial invasion of a legally protected interest and causes a
significant impact upon the person of the plaintiff. Johnson v.
Supersave Markets, Inc. (1984), 211 Mont. 465, 472-73, 686 P.2d
209, 213.
The physical and mental pain and suffering for which Davis
seeks recovery are alleged to have arisen from the defendants'
conduct after the injury and are not related to the pain and
suffering resulting from the injury itself. Such claimed damages
arising from the defendants' conduct after the injury were not
considered in the negligence case.
We conclude that damages relating to pain and suffering
arising from the Church's alleged substantial invasion of Davis'
legally protected interest are not barred under the doctrine of res
judicata.
We hold that the District Court properly denied the Church's
motion in limine to exclude physical and mental pain and suffering
as elements of damage relative to the remaining counts alleged by
Davis.
VI .
Did the District Court err when it refused the Church's
request to amend its answer to include the defense of charitable
immunity?
The Church moved on July 29, 1991 for an order allowing the
defendants to amend their answer to include the defense of
charitable immunity. This was not requested prior to or during the
trial on the negligence action and was not mentioned in the first
appeal. The District Court denied the motion, stating: "The court
finds no basis for the defense and that in fact it is contrary to
modern thinking. See Howard v. Sisters of Charity, 193 F. Supp.
191 (1961)."
The doctrine of charitable immunity is an exception to the
general principle of liability for tortious conduct. Albritton v.
Neighborhood Centers Ass8n for Child Development (Ohio 1984), 466
N.E.2d 867, 869. Where it exists, it has been devoured by
exceptions. Albritton, 466 N.E.2d at 869.
For example, after Ohio initially adopted the rule in 1911,
exceptions were carved out for hospitals, for beneficiaries of the
charity, for negligence in hiring or retaining an employee, for a
business operated by the charity for profit not relating to the
charity's organizational purpose, and for circumstances where the
plaintiff pays for services rendered by the charity. Albritton,
466 N.E.2d at 869-70.
Some courts which adopted the doctrine based it on a public
policy theory. See, e s ,Fitzer v.
.. Greater Greenville S. C. YMCA
(S.C. 1981), 282 S.E.2d 230; and Albritton, 466 N.E.2d 867. In
Fitzer, the court quoted President and Directors of Georgetown
College v. Hughes (D.C. Cir. 1942), 130 F.2d 810, 827:
The rule of immunity is out of step with the general trend of
legislation and judicial policy in distributing losses
23
incurred by individuals through the operation of an enterprise
among all who benefit by it rather than in leaving them wholly
to be borne by those who sustain them. .. .
Fitzer, 282 S.E.2d at 231. In Geiger v. Simpson Methodist-
Episcopal Church of Minneapolis (Minn. X928), 219 N.W. 463, 466,
the court said, "It is almost contradictory to hold that an
institution organized to disperse charity shall be charitable and
extend aid to others, but shall not compensate or aid those injured
by it in carrying on its activities." In abolishing the doctrine
in South Carolina, that statershigh court stated: "The doctrine
of charitable immunity has no place in today's society." Fitzer,
230 S.E.2d at 231.
The public policy justification resulted in widely differing
opinions, which varied as times changed. Some courts have based
their acceptance of the charitable immunity rule on other
rationales aside from or in addition to the public policy
rationale.
One of these is the trust fund theory, a theory that a
charity's funds are held in trust and cannot be diverted to tort
claimants because the charity's ability to exist would be
substantially impaired or destroyed, the donor's intent would be
thwarted and future donors would be discouraged from giving to that
or other charities. Annotation, Tort Immunity of Nongovernmental
Charities--Modern Status 25 A.L.R. 4th 517, 522 (1983). This
theory has been rejected by courts for numerous reasons, including
the modern reality where charity or philanthropy is big business
with liability insurance widely and inexpensively available. I.
d
The theory of respondeat superior, once relied on to support
charitable immunity, has been rejected because it results in
immunity where negligence is that of employees or servants, but not
where negligence is the result of corporate or administrative acts
such as negligence in hiring. I.
d
The final theory is implied waiver of assumption of risk, a
theory based on the rationale that by accepting benefits from the
charity, the beneficiary has waived liability or assumed the risk
of negligence. This theory has been criticized as a mere fiction
with unjust results because a paying patient or beneficiary avoids
waiver or assumption of risk. 25 A.L.R. 4th at 523.
Several states have partially retained charitable immunity for
a charity's agent's or employee's negligence, a nonpaying
beneficiary in a charitable hospital, for trust fund property, for
charitable activities only, or have statutorily limited recoverable
dollar amounts. 25 A.L.R. 4th at 540-46. In New Jersey,
charitable immunity has been partially reinstated by statute for
causes of action arising only from charitable activities. 25
A.L.R. 4th at 542-43, 560.
charitable immunity has been totally abolished as to hospitals
in over thirty states, and retained partially in only a few states.
For institutions other than hospitals, it has similarly been
abrogated either totally (in at least 21 states) or partially. 25
A.L.R. 4th at 547.
The general doctrine of charitable immunity was established in
American courts based on an English decision of 1846. Restatement
(Second) of Torts 5 8953 comment b (1979), (citing Feoffees of
Heriot's Hospital v. Ross, 12 C. & F. 507, 8 Eng.Rep. 1508).
Although the English case was soon repudiated there, American
courts continued to apply it for the reasons discussed above.
Prosser and Keaton, The Law of Torts, 1 133 (1984).
. . . [Vlirtually all states with decisions on the
subject at all have rejected the complete immunity of
charities , , . . Only two or three states in recent
years have insisted on retaining the full immunity in the
absence of legislation to the contrary, Even in some of
these states, however, the immunity is only formally
complete, since statutes provide a method for reaching
any liability insurance funds covering the charity.
I . The Restatement (Second) of Torts,
d 8953 (1979), reflects
this trend away from allowing immunity to charities and provides
that charitable institutions should not be immune merely because of
their charitable makeup.
Montana has never adopted the doctrine of charitable immunity.
The District Court in this case rejected the defense as being
contrary modern thinking, citing Howard v. Sisters Charity of
Leavenworth (D.C. Mont. 1961), 193 F. Supp. 191, a federal district
court opinion applying Montana law. In Howard, the court discussed
the modern trend to eliminate the defense in jurisdictions which
had previously adopted it, discussed the change in the American Law
Institutests position between the publications of the first and
second editions of the Restatement of Trusts, and rejected the
doctrine of charitable immunity because prior reasoning no longer
supported its adoption or retention. Howard, 193 F.Supp, at 192-
The Church contends that the need and basis for the doctrine
of charitable immunity for religious institutions is as plausible
today as when it: was originally established. considering the
realities of modern charitable organizations and the great weight
of authority abandoning the doctrine, it would seem odd for this or
any court to adopt the doctrine now. We agree with the opinion set
forth in Howard and approved by the District Court in this case and
decline to adopt the doctrine of charitable immunity.
We hold the defense of charitable immunity is not an allowable
defense and the District Court properly refused to allow the Church
to amend its answer to include such defense.
Conclusion
In summary, we affirm the District Court on the following
issues: Summary judgment was properly granted to the defendants on
the issues of fraud, misrepresentation and intentional infliction
of emotional distress. Summary judgment was properly denied on the
issue of breach of fiduciary duty. Damages for emotional pain and
suffering are not res judicata. The defense of charitable immunity
was properly rejected.
We also affirm the District Court's ruling on motions in
limine excluding evidence relating to denial of Temple Recommend
and Church callings based on the free exercise clause of the First
Amendment tothe United States Constitution and Article 11, Section
5 of the Montana Constitution. We reverse the District Court's
ruling on the Church's motion in limine which would allow admission
of evidence relating to the threats of excommunication for the
reasons explained herein.
Affirmed in part, reversed in part and remanded.
We Concur:
C
Chief Justice
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
I concur with the majority's conclusions under Issues I, 111,
V, and VI. However, I do not agree with the reasons for the
majority's holding under Issue I. I would affirm the District
Court's summary judgment dismissing the claim of fraud and
misrepresentation for the reason that plaintiff was not damaged as
a result of the representations which form the basis of that claim.
I dissent from the majority's conclusions under Issues I1
and IV.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
After reviewing the record, I conclude that plaintiff has
alleged sufficient facts to submit the issue of intentional
infliction of emotional distress to the jury.
Summary judgment should never serve as a substitute for jury
trial where there are issues of material fact. Beaverhead Bar Supply,
Inc. v. Hanington (lggl), 247 Mont. 117, 805 P.2d 560.
The Church, as the moving party, had the burden of
establishing both the complete absence of any genuine issues of
material fact and entitlement to a judgment as a matter of law.
All reasonable inferences that might be drawn from the offered
evidence must be drawn in favor of the party opposing summary
judgment. Cereckv.Alberston's,Inc. (1981), 195 Mont. 409, 637 P.2d 509.
This Court's previous decisions establish two requirements
that must be met before a claim for intentional infliction of
emotional distress may be submitted to a jury. First, as pointed
out by the majority, we must find as a matter of law that there are
facts alleged which, if proven, would establish that the
defendant's conduct was so outrageous in character that it is
utterly intolerable in a civilized society. Frigon v Morrkon-Maierle, Inc.
.
(1988), 233 Mont. 113, 123, 760 P.2d 57, 63-64. Second, plaintiff
must have suffered "severe emotional distress*'as a result of that
conduct. The cause of action cannot be sustained where a plaintiff
suffers exaggerated and unreasonable emotional distress under the
circumstances. Frt Bank (MA.)-Billings v Clark (1989),
is . 236 Mont. 195,
206, 771 P.2d 84, 91. Finally, we held in Clark that "[ilt is for
the court to determine whether, on the evidence, severe emotional
distress can be found; it is for the jury to determine whether, on
the evidence, it has in fact existed." Clark, 771 P.2d at 91. I
conclude that based upon the testimony of plaintiff, it can be
found. The jury should have been allowed to determine whether in
fact it existed. I offer the following examples of conduct, and
plaintiffls reactions to that conduct, in support of this
conclusion:
1. Prior to plaintiff's suit to recover her medical
payments, local officials from her Church visited her while she was
recovering from surgery and threatened to excommunicate her if she
sued the Church.
2. plaintiff's Temple Recommend was denied because she would
not agree to tithe ten percent of her judgment to the Church and
she would not dismiss her suit as requested by the Church. Because
her dependence on the Church was so strong, she was devastated by
this denial.
3. Plaintiff's Church calling was denied for the same
reasons.
4. Plaintiff was subjected to unannounced visits from male
Church leaders to discuss the status of her lawsuit at unusual
hours of the day and under unusual circumstances. For example, she
was visited late at night when none of her family members were at
home and when she was in the process of recovering from one or more
of the numerous surgical procedures that she underwent.
5, During one unannounced evening visit to plaintiff shortly
after her sixth surgical procedure, a Church representative told
her that he did not want to receive any more medical bills and that
he was ordering the Relief Society to discontinue delivering the
meals which had been delivered to her during her period of
convalescence. She was too ill to cook or care for herself, and as
a result, she had to move in with her brother's family for six
months.
6. Plaintiff was repeatedly given inconsistent and
contradictory instructions by Church officials. On one occasion
she would be told not to worry about her medical bills. However,
the Church would then repeatedly refuse to pay those bills. This
occurred during a time when plaintiff was in poor physical
condition. She underwent six separate surgical procedures to her
cervical spine and one surgical procedure to repair her vocal
cords. She testified that she lived in constant fear that she
would be denied medical care because she could not pay her bills.
7. Church officials repeatedly pressured plaintiff to sign
releases, even though her medical condition, including her need for
further care, had not been resolved. The Church also conditioned
payment of her outstanding medical bills on her willingness to sign
documents releasing the Church from further liability.
8. At one point, plaintiff was told by a Church leader that
any money the Church gave her for medical bills would come out of
the ward fast offerings, and told her that she would be hurting the
people of Kalispell if she proceeded further. Neither statement
was true.
9. Church leaders told plaintiff she was and
"dishonest" because of the suit she had initiated.
10. Plaintiff's psychologist testified that she suffered a
feeling of loss and betrayal as a result of the Church's actions
toward her. The deterioration of her relationship with the Church,
on which she had felt very dependent, contributed significantly to
her level of emotional distress. Plaintiff was a devout and
dedicated member of the Church since 1975 and had tithed $75,000 to
the Church over the ten-year period from 1975 to 1985. The
president of the Church wrote in a letter to the ChurchFs Risk
Management Division on April 26, 1985, that:
Sister Davis is a stalwart faithful member of the Church.
She was working in a capacity at the time [of the
accident] to which the Church had assigned to her. She
does not have insurance and indicated it would be years
before she could satisfy the bills accruing from the
accident.
I conclude under these circumstances that there was in f a c t
evidence of conduct by Church officials which was utterly
intolerable in a civilized community and that their conduct had a
significant impact on the plaintiff from which it could be found
that she suffered severe emotional distress. Whether the evidence
was to be believed and the extent to which plaintiff was damaged
from this conduct, if it was believed, were matters for the jury to
decide.
ORDER IN L I M I N E REGARDING CHURCH DOCTRINE
The majority has excluded evidence that local Church officials
in Kalispell threatened to excommunicate the plaintiff and denied
her Temple Recommend and Church calling because of her refusal to
dismiss the claim against them and her refusal to tithe a portion
of her judgment to the Church. The basis for the majority's
conclusion is that this conduct by local Church officials related
to matters of Church discipline and teachings which are protected
by the First Amendment. However, there is no evidence in this
record that any of the conduct complained of by plaintiff was based
upon Church teachings or Church doctrine. In fact, all of the
evidence is to the contrary. Plaintiff had to sue the Church to
recover payment for her medical expenses which resulted from
injuries sustained on Church property while engaged in Church
activity. Allen Swan, the Church's attorney from Salt Lake City,
Utah, testified that it w a s the tradition of the Church to assume
responsibility for these expenses. According to the Church's
attorney, there was no basis in Church doctrine for the efforts of
local officials to frustrate plaintiff's attempt to have these
bills paid.
Furthermore, it was the advice of the Church's attorney that
plaintiff's calling and Temple Recommend be considered by local
officials without regard to the pending civil action. Certainly
that recommendation would not have been made if it was contrary to
Church doctrine.
In the face of these indications that local Church officials
were actually acting contrary to Church doctrine when they
threatened plaintiff with excommunication and denied her Church
privileges, there is absolutely no evidence in the record that any
of their efforts to deprive her of her civil remedies were based on
Church doctrine. The majority's conclusions to the contrary are
sheer speculation. For these reasons, I would reverse the District
Caurttsorder in limine which excluded evidence that plaintiff was
threatened with excommunication and denied privileges based upon
her judicial enforcement of basic rights under the laws of Montana.
For these reasons, I dissent from the majority opinion. I
would reverse the judgment of the District Court which denied
plaintiff the right to submit her claim for intentional infliction
of emotional distress to a jury, and I would allow evidence of
local Church officials' threats of excommunication and denial of
plaintiff's Church privileges based upon her effort to recover
payment for her medical expenses.
Justice William E. Hunt, Sr., joins in the foregoing
concurrence and dissent.
/
Justice "
Justice John Conway Harrison, dissenting.
I join in the dissent of Justice Terry N. Trieweiler but I
would afso dissent to the majority's conclusions on Issues I and
111. Unlike the majority, I would hold that fraud is clearly a
matter for the jury to decide under the case law of this state.
As to Issue 111, I would concur in the appellant Davist
argument that the fiduciary relationship between herself and the
Church was much broader than characterized by the Church and as a
result, the Church had a duty to act in her best interest. I would
find that the Church's actions were not privileged and that the
facts demonstrate a willful and deliberate breach of the Churchvs
fiduciary duty to its members.
Although I concur in the majority's conclusion under Issue VI,
that the District Court did not err when it refused the Church's
request to amend its answer to include the defense of charitable
immunity, I would elaborate on the reasons. As the federal
district court noted in Howard v. sisters of Charity of Levenworth
( D - Mont. 1961), 193 F.Supp. 191, 193, the trend of judicial
opinion has been to reject the doctrine of charitable immunity. In
addition the LD.5 Church is not in need of the protection once
considered necessary to protect charitable organizations from
liability. Here we have a highly sophisticated and affluent
institution that has been indemnified from injury claims through
its own risk management division.
May 18, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Dana L. Christensen
Kendra L. Kawaguchi
MUPRHY, ROBINSON, HECKATHORN & PHILLIPS, P.C.
P.O. Box 759
Kalispell, MT 59903-0759
Kenneth E. O'Brien
HASH, O'BRIEN & BARTLETT
P.O. BOX 1178
136 1st Ave. West
Kalispell, MT 59903
ED SMITH
C.LERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Depu