No. 93-524
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
VICKI GABRIEL, for herself and as
personal representative of the Estate
of RICHARD J. SASSE, and for
STACY SASSE, a minor,
Plaintiffs and Appellants,
-vs-
MAR 17 1994
SCHOOL DISTRICT NUMBER 4,
LIBBY, MONTANA, ,-/ ~ L / z
Citlhh O F S U P R E M E COURT
Defendant and Respondent. STATE OF MONTANA
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
John M. Morrison; Morrison Law Office, Helena,
Montana
For Respondent:
Todd A. Hammer; Warden, Christiansen, Johnson &
Berg, Kalispell, Montana
Submitted on Briefs: January 27, 1994
Decided: March 17, 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
We conclude in this case that the District Court erred in
granting School ~istrictNumber 4 s
' motion for change of venue
pursuant to 5 25-2-126(3), MCA. Accordingly, we reverse and remand
for further proceedings.
Richard J. Sasse (Sasse) fell from a school roof in Libby,
Montana, while working on a construction project for School
District Number 4 (School ~istrict). Sasse survived the fall and
was taken to Kalispell Regional Hospital in Flathead County, where
he subsequently died.
Vicki Gabriel (~abriel), for herself and as personal
representative of Sasse's estate, and for Stacy Sasse, a minor,
filed a complaint against the School District in the Eleventh
Judicial District Court, Flathead County. The complaint states
separate survivorship and wrongful death claims based on alleged
wrongful conduct by the School District in Lincoln County.
The School District filed a motion to change venue from
Flathead County to Lincoln County. The District Court granted the
motion. It determined that all events associated with Gabriel's
causes of action occurred in Lincoln County, and that Lincoln
County is where the claims arose and where the School District, a
political subdivision, is located. Therefore, the court concluded,
Lincoln County is the proper place of trial under 5 25-2-126(3),
MCA. Gabriel appeals.
This appeal involves a determination of whether the court's
legal conclusion was correct. We review such legal conclusions &
2
m. Steer, Inc. v. Deplt of Revenue (1990), 245 Mont. 470, 474-
75, 803 P.2d 601, 603.
At the outset, we conclude that the District Court correctly
determined that 5 25-2-126 (3), MCA, is the applicable venue statute
in this case. Section 25-2-126(3), MCA, provides that the "proper
place of trial for an action against a political subdivision is in
the county in which the claim arose or in any county where the
political subdivision is located." The parties do not dispute the
School District's status as a 'political subdivision" pursuant to
§ 2-9-101(5), MCA.
The School District contends, in this regard, that no Montana
statute specifically provides venue for the separate, but dependent
and combined, tort claims of survivorship and wrongful death.
While the contention is correct, it is not relevant here. The
legislature specifically has provided for venue in actions against
political subdivisions such as the School District. Thus, § 25-2-
126(3), MCA, is applicable here.
The more difficult issue remains, however: is Flathead County
- proper venue for Gabriel's wrongful death claim under 5 25-2-126,
a
MCA? If so, the District Court erred. It is well-established that
if a plaintiff files in one county where venue is proper, no motion
for change of venue can be granted. Section 25-2-114, MCA;
Petersen v. Tucker (1987), 228 Mont. 393, 396, 742 P.2d 483, 484-
85; Spencer v. Flathead County (1984), 212 Mont. 399, 401, 687 P.2d
1390, 1392.
Gabriel recognizes that Lincoln County is the county where the
School District is tllocatedwand where her survivorship claim
arose. As a result, she concedes that Lincoln County is a proper
place for trial of her claims. However, she asserts that the
wrongful death claim arose in Flathead County where Sasse's death
occurred and that, as a result, Flathead County also is 2 proper
place for trial under 5 25-2-126, MCA. W e agree.
We recently addressed a related issue concerning wrongful
death actions in Carroll v. W.R. Grace & Co. (19921, 252 Mont. 485,
830 P . 2 d 1253. We concluded in Carroll that death is a necessary
element in a wrongful death action under Montana law; on that
b a s i s , we held that a wrongful death action accrued at the time of
the death, r a t h e r than on t h e d a t e of the injury, for purposes of
the statute of limitations. 830 P.2d at 1254, 1 2 5 5 . While the
issue presently before us relates to venue rather than the statute
of limitations, we are persuaded that the Carroll approach to
Montana wrongful death claims is applicable here.
Carroll stands for the proposition that death is a critical,
and the final, element in the accrual of a wrongful death action.
If the claim does not accrue until the death occurs, it cannot
under § 25-2-126, MCA, until the death occurs. Simply put,
no wrongful death claim exists until the death occurs; therefore,
the claim cannot "ariset1for venue purposes until that time. As a
logical corollary to Carroll, we conclude that a wrongful death
claim arises under § 25-2-126, MCA, where t h e death occurs. Thus,
because the critical and defining element of Gabriel's wrongful
death claim occurred in Flathead County, we hold that the District
Court erred in concludingthat all events associated with Gabriel's
claims occurred in Lincoln County and that her wrongful death claim
arose there.
The School District relies on Gaboury v. Flagler Hospital,
Inc. (Fla. App. l975), 316 So.2d 642 and Dzur v. Gaertner (Mo. App.
1983) , 657 S .W.2d 35, for the proposition that the proper venue for
wrongful death actions is in the place where the underlying
wrongful acts occurred. While the Florida court reached a result
different from that we reach here, based, in part, on dissimilar
statutes, we agree with its statement that a cause of action arises
"at the place where the act creating the right to bring an action
occurred . . . ." Gabourv, 316 So.2d at 644. Indeed, we took this
approach to the issue of where a cause of action arises under the
predecessor to 5 25-2-126, MCA, in Spencer. We stated that the
action arises "where the act or breach occurs which creates the
necessity for bringing the suit." Spencer, 687 P.2d at 1392.
Here, under Carroll and Spencer, the act creating the right to
bring a wrongful death claim is Sasse's death--in Flathead County.
The Missouri court in Dzur concluded that, under Missouri
statutes, a wrongful death claim "accrues" when death occurs for
statute of limitations purposes but at the place where the
underlying wrongful act occurred for venue purposes. 657 S.W.2d at
36. While recognizing the existence of this alternative rationale
and result, we are not persuaded that it produces the appropriate
result for Montana, given Carroll and 5 25-2-126(3), MCA.
Nor is the School District's reliance on Howard v. Dooner
Laboratories, Inc. (1984), 211 Mont, 312, 688 P.2d 279, well
placed. Howard involved application of the general tort statute
providing for venue in the county where the tort "was committed" to
a situation involving medical malpractice. Addressing the word
llcommitted,fl determined that the tort occurred where the medical
we
negligence took place. Howard, 688 P.2d at 282. Howard did not
address either a post-Carroll wrongful death claim or the specific
language contained in 5 25-2-126, MCA.
The School District is correct in pointing out that
survivorship and wrongful death claims must be brought in one
action in Montana, pursuant to 5 27-1-501(2), MCA. In this regard,
we note only that nothing in 5 27-1-501, MCA, relates to t h e
question of venue for a wrongful death action. Nor does the School
District's argument that venue for the survivorship claim is in
Lincoln County--where the alleged tortious conduct was committed
and the claim arose--advance its cause. It is well-established
that venue may be appropriate in more than one place and that, in
such an event, filing in a proper venue precludes a successful
change of venue motion. Petersen, 742 P.2d at 484.
We conclude that a wrongful death claim arises, under 9 25-2-
126, MCA, where the death occurs. Because Gabriel's wrongful death
claim arose in Flathead County, we further conclude that Flathead
County is a proper venue for trial of this action pursuant to § 25-
2-126(3), MCA. Thus, we hold that the ~istrictCourt erred in
concluding that Lincoln County was the only proper venue, and
remand to the ~istrictCourt for further proceedings.
Reversed and remanded.
W concur:
e
Chief J u s t i c e
Justices
Justice Fred J. Weber dissents as follows:
The complaint filed by the plaintiffs sought, in its first
cause of action, the recovery by the estate of the damages for
conscious pain and suffering of Mr. Sasse during the time he lived
following his fall, his estate-incurred medical expenses and
funeral expenses, and the loss by his estate as a result of the
permanent loss of earning capacity of Mr. Sasse. As a second cause
of action, the plaintiffs sought recovery for wrongful death
setting forth claims for loss of financial support, loss of society
and companionship, sorrow and grief, and loss of services.
When considering the first cause of action, the proper place
of trial for the tort action is fixed by 5 25-2-122, MCA, which
provides in pertinent part:
25-2-122. Torts. The proper place of trial for a
tort action is:
(1) the county in which the defendants ...
reside
at the commencement of the action; or
(2) the county where the tort was committed. . . .
In addition, § 25-2-126, MCA, provides in pertinent part:
25-2-126. Against state, county, and political
subdivisions.
(3) The proper place of trial for an action against a
political subdivision is in the county in which the claim
arose or in any county where the political subdivision is
located.
Applying the foregoing statutes to the first cause of action
results in a determination that the proper venue of that cause of
action would be only in Lincoln County because the tort was
committed in that county and that county also was the location of
the defendant political subdivision.
In considering the venue of the second cause of action, that
being the wrongful death action, several statutes need to be
considered. Section 27-1-501, MCA, provides in pertinent part:
27-1-501. Survival of cause of action or defense --
death or disability or transfer of interest. (1) An
action, cause of action, or defense does not abate
because of the death or disability of a party . . . but
whenever the cause of action or defense arose in favor of
such party prior to his death or disability . . . it
survives and may be maintained by his representatives or
successors in interest. . . .
(2) Actions brought under this section and 27-1-513
must be combined in one legal action . . ..
Section 27-1-513, MCA, provides in pertinent part:
27-1-513. Action for wrongful death. When injuries
to and the death of one person are caused by the wrongful
act or neglect of another, the personal representative of
the decedent's estate may maintain an action for damages
against the person causing the death . . . .
In its analysis of the venue of the wrongful death claim, the
majority follows the Carroll case and concludes that the venue of
the wrongful death claim is Flathead County. The majority
correctly points out that under 1 27-1-501, MCA, both the first and
second causes of action of this complaint must be combined in one
legal action.
The majority opinion concludes that if a plaintiff files in
one county where venue is proper, no motion for change of venue can
be granted. That appears to be the primary rationale for the
decision. The majority opinion does not address the contradiction
above-described when the venue statutes are analyzed with regard to
the two different causes of action. The venue for the survival
action, the first cause of action, is limited to Lincoln County.
The venue of the second cause of action, the action for wrongful
death, is either in Flathead County or Lincoln County. Under these
circumstances I suggest it is appropriate to balance the facts as
was done by the District Court. As pointed out by the District
Court, all events associated with the plaintiffs' two causes of
action occurred in Lincoln County with the single exception of the
death, which occurred in Flathead County.
I therefore conclude that because the proper venue for the
first cause of action is limited to Lincoln County by statute, and
a
- proper venue for the second cause of action also is in Lincoln
County, that it is appropriate to conclude that the proper venue
for both causes of action should be limited to Lincoln County. I
would therefore affirm the District Court.
Chief Justice J A. Turnage:
I concur in the dissenting opinion of Justice Weber.
March 17, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
John M. Morrison
MORRISON LAW OFFICE
80 Soputh Warren
Helena, MT 59601
Todd k Hammer
WARDEN, CHRISTIANSEN, JOHNSON & BERG
P. 0, 3038
Box
Kalispell, MT 59903-3038
ED SMITH
CLERK OF W E SUPREME COURT