McKinnon v. Western Sugar Cooperative Corp.

February 5 2010

DA 09-0330

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 24

LANCE McKINNON,

Plaintiff and Appellant,

v.

WESTERN SUGAR COOPERATIVE
CORPORATION,

Defendant and Appellee.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV 07-111
Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

James P. Carey and Micheal F. Lamb, Lamb & Carey, Helena, Montana
Victor R. Halverson, Halverson, Sheehy & Plath, P.C., Billings, Montana
Jon M. Moyers, Moyers Law, P.C., Billings, Montana

For Appellee:

Chad E. Adams and Leo S. Ward, Browning, Kaleczyc, Berry & Hoven,
P.C., Helena, Montana

Submitted on Briefs: November 4, 2009

Decided: February 5, 2010

Filed:

__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 Lance McKinnon (McKinnon) appeals an order of the First Judicial District Court,

Lewis and Clark County, dismissing his complaint for failure to state a claim and denying his

constitutional challenge based on McKinnon’s failure to notify the Attorney General’s office.

We reverse.

¶2 We review the following issues on appeal:

¶3 Did the District Court correctly dismiss McKinnon’s intentional injury claim for

failure to state a claim?

¶4 Did the District Court correctly apply M. R. Civ. P. 24(d) when it dismissed

McKinnon’s constitutional challenge?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 A railcar traumatically amputated both of McKinnon’s legs while he was working for

Western Sugar Cooperative Corporation (Western Sugar) on February 15, 2005. McKinnon

received workers’ compensation benefits for his injury.

¶6 McKinnon filed his original complaint on February 9, 2007, in which he sought to

circumvent the exclusivity provision of the Workers’ Compensation Act. Section 39-71-411,

MCA. McKinnon initially did not serve Western Sugar. McKinnon alleged in his complaint

that Western Sugar had engaged in inherently dangerous, ultra-hazardous work practice and

had violated its non-delegable duty to provide a safe workplace. McKinnon claimed that

Western Sugar’s actions had proximately caused his injuries.

¶7 This Court issued its opinion in Brady v. PPL Montana, 2008 MT 177, 343 Mont.

405, 185 P.3d 330, after McKinnon had filed his complaint. Brady came to this Court with
2
an incomplete factual record on a certified question pursuant to M. R. App. P. 44 from the

U.S. Court of Appeals for the Ninth Circuit. We declined in Brady to address the

constitutionality of the Workers Compensation exclusivity provision in a “factual vacuum.”

Brady, ¶ 6.

¶8 McKinnon amended his complaint in light of Brady to include a constitutional

challenge to § 39-71-413, MCA. McKinnon filed his first amended complaint on July 18,

2008. McKinnon specifically alleged that Western Sugar’s conduct met the statutory

exception to Workers’ Compensation exclusivity. McKinnon also argued that § 39-71-413,

MCA, was unconstitutional both on its face and as applied to him.

¶9 McKinnon timely served Western Sugar on September 12, 2008. Western Sugar filed

a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim on

October 1, 2008. McKinnon served the Attorney General with a copy of his first amended

complaint on October 7, 2008. The Attorney General acknowledged receipt of service on

October 10, 2008. The Attorney General did not file a motion to intervene.

¶10 The District Court granted Western Sugar’s motion to dismiss on all counts following

oral argument. The court specifically found that McKinnon’s claims did not fit within the

statutory exception to Workers’ Compensation exclusivity. The court also dismissed with

prejudice McKinnon’s constitutional challenges for failing to provide the Attorney General

with notice at the time that he had filed his first amended complaint and before he had served

Western Sugar.

¶11 McKinnon filed a notice of appeal on June 4, 2009. McKinnon notified the Attorney

General of his appeal on the same date. The Attorney General filed notice of its intent to
3
intervene on June 29, 2009. Western Sugar moved to dismiss McKinnon’s substantive

constitutional challenges. This Court granted Western Sugar’s motion to the extent that the

appeal would be limited to the procedural issue of whether the District Court correctly

interpreted M. R. Civ. P. 24(d). McKinnon concurred. The Attorney General withdrew its

notice of intervention.

STANDARD OF REVIEW

¶12 We construe a complaint in the light most favorable to the plaintiffs when reviewing

an order dismissing a complaint under M. R. Civ. P. 12(b)(6). Jones v. Mont. Univ. Sys.,

2007 MT 82, ¶ 15, 337 Mont. 1, 155 P.3d 1247. A court should not dismiss a complaint for

failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim that would entitle him to relief. Jones, ¶ 15. A district court’s

determination that a complaint failed to state a claim presents a conclusion of law. Jones,

¶ 15. We review for correctness a district court’s conclusions of law. Jones, ¶ 15.

DISCUSSION

¶13 Did the District Court correctly dismiss McKinnon’s intentional injury claim for

failure to state a claim?

¶14 The District Court determined that McKinnon had failed to state a claim under the

exception to the Workers’ Compensation exclusivity provision set forth at § 39-71-413,

MCA. The court agreed with Western Sugar that McKinnon had alleged no injury caused by

“an intentional and deliberate act” on the part of Western Sugar. Section 39-71-413, MCA.

The District Court found that McKinnon had set forth merely a series of allegations that

Western Sugar had failed to ensure a safe workplace. The court determined that “without
4
using the word negligence, McKinnon has alleged a negligence claim against Western

Sugar.” The court further determined that McKinnon had failed to state a claim under § 39-

71-413, MCA, in light of McKinnon’s failure to allege “an intentional and deliberate act” on

the part of Western Sugar.

¶15 Western Sugar argues that Wise v. CNH Am., LLC, 2006 MT 194, 333 Mont. 181, 142

P.3d 774, provides the standard for dismissal in McKinnon’s case. We held in Wise that the

plaintiff’s failure to allege anything more than ordinary negligence proved insufficient to

satisfy the requirements of § 39-71-413, MCA. We rejected Wise’s arguments that he

needed to allege only actions that would have constituted “intentional and malicious”

conduct in order to satisfy the statutory requirement. Wise, ¶ 9. We noted that the 2001

amendment to § 39-71-413, MCA, specifically had replaced “malicious” with “deliberate.”

Wise, ¶ 11; § 39-71-413, MCA. The legislature also had defined an “intentional injury” as

one “caused by a deliberate act with the specific intent of causing an injury.” Wise, ¶ 11; §

39-71-413(3), MCA. We concluded in Wise that following the amendment of § 39-71-413,

MCA, “an employee now must allege that he or she has been intentionally injured by the

intentional act of an employer or fellow employee in order to avoid the exclusivity provision

of the Workers’ Compensation Act.” Wise, ¶ 11.

¶16 Wise had alleged only that his employer negligently failed to provide safe working

conditions and negligently failed to comply with state and federal regulations. Wise, ¶ 12.

Wise made no allegation that the employer had acted intentionally or deliberately. Wise,

¶ 12. Wise claimed merely that the specific allegations of negligence in his claim satisfied

the pleading requirement by constituting “intentional and deliberate” conduct on the part of
5
his employer. Wise, ¶ 12. Wise never made the connection of how the alleged negligence

constituted intentional and deliberate conduct on the part of his employer. McKinnon’s

claim, by contrast, alleges specific intentional and deliberate acts on the part of Western

Sugar. McKinnon claims that Western Sugar’s conduct constituted an “intentional and

deliberate act of engaging in an ongoing policy and practice of moving railcars in an

uncontrolled manner, without necessary safety equipment.”

¶17 McKinnon asserts that his claim sufficiently alleged an intentional act to survive

scrutiny under M. R. Civ. P. 12(b)(6). McKinnon claims that he was not allowed to develop

the record through discovery sufficiently to establish the facts necessary to prove his claims.

A complaint must contain “a short and plain statement of the claim showing that the pleader

is entitled to relief.” M. R. Civ. P. 8(a). Our cases reflect the principle that liberal rules of

pleading allow for compliance with the spirit and intent of the law rather than a rigid

adherence to formula or specific words. See R.H. Schwartz Constr. Specialties v. Hanrahan,

207 Mont. 105, 672 P.2d 1116 (1983). This Court also has determined that further discovery

may constitute an appropriate remedy for lack of specificity in a complaint. Willson v.

Taylor, 194 Mont. 123, 128, 634 P.2d 1180, 1183 (1981). This determination reflects the

principle that “ ‘[t]his Court does not favor the short circuiting of litigation at the initial

pleading stage unless a complaint does not state a cause of action under any set of facts.’ ”

Willson, 194 Mont. at 128, 634 P.2d at 1183 (quoting Tobacco River Lbr. Co. v. Yoppe, 176

Mont. 267, 271, 577 P.2d 855, 857 (1978)).

¶18 McKinnon specifically alleges that Western Sugar’s conduct fit within the exception

to Workers’ Compensation exclusivity at § 39-71-413, MCA. McKinnon further alleges that
6
Western Sugar’s conduct in regularly moving railcars in an uncontrolled manner without

proper safety equipment was intentional and deliberate. McKinnon points out that Western

Sugar relies primarily on this Court’s interpretation of the pre-2001 statutory provision.

McKinnon asserts that our holding in Brady indicates that the 2001 amendment to § 39-71-

413, MCA, has yet to be interpreted comprehensively by this Court.

¶19 Wise requires that a plaintiff allege facts sufficient to establish deliberate acts by the

employer intended to cause injury to the employee. Wise, ¶ 11. McKinnon alleges that

Western Sugar’s practice of moving railcars without proper safety procedures or equipment

constituted deliberate conduct. McKinnon further alleges that his severe injury was a certain

outcome of this practice. Thus, McKinnon claims that his injury represents the intended

outcome of Western Sugar’s deliberate acts.

¶20 McKinnon’s appeal presents the initial question of whether his complaint alleges

conduct sufficient to establish intentional and deliberate conduct that would satisfy the

exception to the exclusivity provision of the Workers’ Compensation Act. The Dissent

characterizes McKinnon’s pleading as a negligence claim masquerading as an allegation of

intentional injury. This argument attenuates the basic principles underlying the concept of

notice pleading and denies McKinnon the opportunity to develop the record through

discovery. We cannot say beyond doubt that McKinnon can prove no set of facts in support

of his claim that would entitle him to relief under these circumstances. Jones, ¶ 15. At a

minimum, the District Court should have afforded McKinnon the opportunity to develop the

record through discovery to attempt to show intentional and deliberate action on the part of

Western Sugar. Willson, 194 Mont. at 128, 634 P.2d at 1183. McKinnon’s claim may fail at
7
the summary judgment stage if he fails through further discovery to establish sufficient

evidence to support his allegations.

¶21 Did the District Court correctly apply M. R. Civ. P. 24(d) when it dismissed

McKinnon’s constitutional challenge?

¶22 The District Court concluded that McKinnon had failed to provide the Attorney

General notice of his constitutional challenge at the time that he filed his first amended

complaint in compliance with M. R. Civ. P. 24(d). Rule 24(d) requires a party raising a

constitutional issue where the State is not a party to notify the Attorney General

“contemporaneously with the filing of the pleading or other document in which the

constitutional issue is raised.” M. R. Civ. P. 24(d).

¶23 McKinnon filed his first amended complaint on July 18, 2008. He served the

complaint on Western Sugar on September 11, 2008. McKinnon served and notified the

Attorney General on October 7, 2008. The Attorney General’s office acknowledged notice

of the complaint on October 10, 2008. The Attorney General did not appear or seek to

intervene before the District Court’s May 7, 2009, order granting Western Sugar’s motion to

dismiss.

¶24 McKinnon claims that the District Court incorrectly dismissed with prejudice his

constitutional challenges. McKinnon argues that no authority exists on which to predicate

such a dismissal, especially in light of the fact that the Attorney General had acknowledged

proper notification and had chosen not to intervene within the 20 day window allowed by

Rule 24(d).

8
¶25 We previously have not had occasion to apply Rule 24(d). The District Court

accepted Western Sugar’s argument that it should apply our precedent under former M. R.

App. P. 38. Rule 38, like M. R. Civ. P. 24(d), required a party challenging the

constitutionality of a statute to file notice with the Attorney General “contemporaneously

with the filing of the notice of appeal or with the filing of an original proceeding in the

supreme court.” M. R. App. P. 38 (1999).

¶26 We determined in Russell v. Masonic Home of Mont., Inc., 2006 MT 286, 334 Mont.

351, 147 P.3d 216, that the appellant’s failure to serve timely notice on the Attorney General

for more than three months after filing a notice of appeal was a failure to “procedurally

comply with an essential condition precedent, thus precluding this court from reaching the

constitutional challenge.” Russell, ¶ 20. McKinnon’s case is distinguishable from Russell,

notwithstanding the Dissent’s arguments to the contrary.

¶27 Russell filed her notice of constitutional challenge with the Attorney General the same

week that she filed her opening brief on appeal. Russell had neglected to file notice with the

Attorney General under M. R. Civ. P. 24(d) in District Court. Russell’s dilatory filing under

M. R. App. P. 38 failed to provide the Attorney General with a meaningful opportunity to

respond to the constitutional challenge. McKinnon filed his notice of constitutional

challenge shortly after he served his amended complaint on Western Sugar. Neither party

had engaged in discovery, filed any motions, or otherwise engaged in pretrial litigation by

the time that McKinnon had notified the Attorney General of his constitutional challenge.

¶28 Requiring McKinnon to have served the Attorney General before serving the

opposing party or developing his case through discovery does not further the purpose of M.
9
R. Civ. P. 24(d). The Rule intends to allow the Attorney General to intervene in a case

where a party challenges the constitutionality of a statute. The Rule served its purpose here.

The Attorney General could have intervened had it chosen to do so. The fact that no

prejudice accrued to the Attorney General from McKinnon’s allegedly late notice further

illustrates that the purpose and spirit of the rule were not violated. The Dissent would have

us apply the rule without regard to its intended purpose. This approach ignores the fact that

“this Court has refused to abide by such a strict, formalistic approach to statutory

interpretation and ha[s] readily applied the maxim ‘The law respects form less than

substance.’” McKirdy v. Vielleux, 2000 MT 264, ¶ 35, 302 MT 18, 19 P.3d 207 (quoting §

1-3-219, MCA).

¶29 McKinnon also argues that this Court held that substantial compliance with M. R.

App. P. 38 proved sufficient where such compliance allowed the Attorney General an

opportunity to respond to the constitutional challenge. See U.S. Mfg. & Distrib. Corp. v.

Great Falls, 169 Mont. 298, 302, 546 P.2d 522, 524-25 (1976). We must agree with

McKinnon based on the fact that the Attorney General acknowledged proper receipt of

notice. M. R. Civ. P. 24(d) seeks to ensure that the Attorney General will have the chance to

appear in the district court to defend the constitutionality of a statute in a case in which the

State is not a party. Nothing prevented the Attorney General from participating in the

litigation. The Attorney General’s office acknowledged timely notice and declined to

exercise its statutory right to intervene within 20 days.

¶30 We cannot determine that McKinnon’s notice constituted a failure of a “condition

precedent” as had been the case in Russell. McKinnon complied with the spirit of the rule
10
and no prejudice accrued to the Attorney General due to his allegedly late compliance. Our

rules of civil procedure “place the spirit of the law above strict compliance with the letter of

the law.” State Medical Oxygen & Supply v. American Medical Oxygen Co., 230 Mont. 456,

462, 750 P.2d 1085, 1089 (1988).

¶31 Reversed.

/S/ BRIAN MORRIS

We Concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON

Justice Jim Rice, dissenting.

¶32 To state a claim under the exception to the exclusivity provision of the Workers’

Compensation Act, a complaint must allege that an employer’s or fellow employee’s

intentional act caused an intentional injury. Section 39-71-413(1), MCA (2003).

Additionally, in order to challenge the constitutionality of the Workers’ Compensation Act, a

plaintiff must “contemporaneously” notify the Attorney General in writing of the

constitutional claim, specifying the section of the code or chapter of the session law being

challenged. M. R. Civ. P. 24(d) (2005). McKinnon complied with neither of these

requirements. Despite that, the Court reverses both issues. I believe the District Court

correctly dismissed McKinnon’s complaint, and therefore dissent.

¶33 In reviewing the District Court’s dismissal of the action, we construe the complaint in

the light most favorable to the plaintiff. Wise v. CNH America, LLC, 2006 MT 194, ¶ 6, 333
11
Mont. 181, 142 P.3d 774. A complaint will survive a motion to dismiss only if it “put a

defendant on notice of the facts that the plaintiff intends to prove; the facts must disclose the

elements necessary to make the claim; and the complaint must demand judgment for relief

sought by the plaintiff.” Wise, ¶ 8 (citing Kunst v. Pass, 1998 MT 71, ¶ 35, 288 Mont. 264,

957 P.2d 1).

¶34 A fundamental tenet of the Workers’ Compensation Act is the “exclusive” remedy it

provides for work-related injuries. Section 39-71-411, MCA. A narrow exception to the

Act’s exclusivity is provided when “an employee is intentionally injured by an intentional

and deliberate act of the employee’s employer or . . . a fellow employee . . . .” Section 39-

71-413(1), MCA (emphasis added). “Intentional injury” is defined as “an injury caused by

an intentional and deliberate act that is specifically and actually intended to cause injury to

the employee injured and there is actual knowledge that an injury is certain to occur.”

Section 39-71-413(3), MCA (emphasis added). Thus, to satisfy the exception, the statute

clearly requires that both the act and the resulting injury be specifically and actually

intended.1

1
The requirement of specific intent for both the act and the resulting injury is a high standard, but
when viewed in its historical context, was one clearly intended by the Legislature. In 1971, this
Court decided Enberg v. Anaconda Co., 158 Mont. 135, 137, 489 P.2d 1036, 1037 (1971), requiring
the pleading of an intentional injury in addition to an intentional act. The exclusivity statute then
went through various revisions, see e.g. § 92-204, RCM (1973) and § 92-204.1, RCM (1977), before
its recodification at § 39-71-413, MCA (1978). The 1978 version of the statute remained in effect
until 2001, when it was revised in response to this Court’s decision in Sherner v. Conoco, Inc., 2000
MT 50, 298 Mont. 401, 995 P.2d 990, which concluded that the provision did not require an intent to
cause the resulting injury. See Sherner, ¶¶ 38-39. In response, the Legislature amended the statute
to require a specific intent for both the act and the resulting injury. SB 323, 57th Leg., Reg. Sess.
(Apr. 12, 2001).
12
¶35 The Legislature’s 2001 amendment was not lost upon this Court and, in 2006, we

interpreted the statute to mean what it says, holding “[i]n order to state a claim under § 39-

71-413, MCA, an employee must now allege that he or she has been intentionally injured by

the intentional act of an employer or fellow employee in order to avoid the exclusivity

provision of the Workers’ Compensation Act.” Wise, ¶ 12 (emphasis added).

¶36 Accepting the allegations of the complaint as true, Count I fails to allege either the

element of an intentional act or an intentional injury. McKinnon alleges that: (1) Western

Sugar had a “duty” to protect him; (2) Western Sugar “breach[ed]” that duty by failing to

provide him with the appropriate “direction, supervision, training, and equipment;” (3)

Western Sugar “caused Mr. McKinnon’s injuries;” and (4) “Mr. McKinnon has sustained

damages.” Thus, McKinnon alleges breach of a duty by Western Sugar which caused him

damages. As the District Court correctly recognized, “without using the word negligence,

McKinnon has alleged a negligence claim against Western Sugar.” See e.g. Peterson v.

Eichhorn, 2008 MT 250, ¶ 23, 344 Mont. 540, 189 P.3d 615 (delineating the elements of

negligence as duty, breach, cause, and damages) (citing Wilden v. Neumann, 2008 MT 236, ¶

14, 344 Mont. 407, 189 P.3d 610; Bonilla v. U. of Mont., 2005 MT 183, ¶ 14, 328 Mont. 41,

116 P.3d 823; Massee v. Thompson, 2004 MT 121, ¶ 30, 321 Mont. 210, 90 P.3d 394). The

District Court correctly dismissed Count I for failure to state a claim under § 39-71-411,

MCA, precisely as we did in Wise: “[The employer’s] negligent conduct, viewed in a light

most favorable to Wise, remains negligent conduct, and does not rise to the level of an

intentional act specifically designed to cause an injury to Wise.” Wise, ¶ 12 (citing § 39-71-

413, MCA).
13
¶37 Count II likewise fails to state a claim for which relief may be granted. It restates the

allegations of Count I and then adds the following assertions:

[McKinnon] was injured by [Western Sugar’s] intentional and deliberate act of
engaging in an ongoing policy and practice of moving rail cars in an
uncontrolled manner, without necessary safety equipment, when it knew or
should have known that eventual severe injury to [McKinnon] was certain to
occur—in that regard, a knowing or intended consequence of its intentional
acts. [Western Sugar’s] conduct in this regard caused Mr. McKinnon’s
injuries.
As a direct result of the injuries caused by [Western Sugar’s] conduct as
described herein, Mr. McKinnon has sustained damages including past and
future lost earnings and capacity; past and future medical expenses; past and
future pain and suffering; past and future loss of enjoyment of life.

Taking these allegations as true, Count II asserts: (1) Western Sugar intentionally and

deliberately engaged in an unsafe policy and practice of moving rail cars; (2) Western Sugar

lacked appropriate safety equipment; (3) Western Sugar knew or should have known

McKinnon would eventually be injured; and (4) McKinnon was injured.

¶38 Even under the lenient standards of notice pleading, McKinnon has failed to state a

claim under § 39-71-413, MCA. McKinnon’s assertion that Western Sugar intentionally and

deliberately “engag[ed] in an ongoing policy and practice” arguably stated an intentional and

deliberate act by Western Sugar and, construing the pleading in McKinnon’s favor, I would

accept it as such. However, fatal to McKinnon’s claim is his failure to allege that Western

Sugar also acted with the specific and actual intention to cause the resulting injury to

McKinnon. McKinnon’s complaint merely alleges that Western Sugar “knew or should have

known McKinnon would eventually be injured,” which treads nowhere near a claim that his

injury was “caused by an intentional and deliberate act that is specifically and actually

14
intended to cause injury to the employee injured,” as required by § 39-71-413(3), MCA

(emphasis added).

¶39 Larson’s Workers’ Compensation Law explains regarding the allegations necessary to

sustain such intentional claims:

Even if the alleged conduct goes beyond aggravated negligence, and
includes such elements as knowingly permitting a hazardous work condition to
exist, knowingly ordering employees to perform an extremely dangerous job,
wilfully failing to furnish a safe place to work, wilfully violating a safety
statute, failing to protect employees from crime, refusing to respond to an
employee’s medical needs and restrictions, or withholding information about
worksite hazards, the conduct still falls short of the kind of actual intention to
injure that robs the injury of accidental character.

. . .

If [the cases requiring an intent to harm as well as an intent to act] seem
rather strict, one must remind oneself that what is being tested here is not the
degree of gravity or depravity of the employer’s conduct, but rather the narrow
issue of the intentional versus the accidental quality of the precise event
producing injury. The intentional removal of a safety device or toleration of a
dangerous condition may or may not set the stage for an accidental injury
later. But in any normal use of the words, it cannot be said, if such an injury
does happen, that this was deliberate infliction of harm comparable to an
intentional left jab to the chin.

Larson’s Workers’ Compensation Law § 103.03 (Rev. ed., Matthew Bender Supp. 2009)

(footnotes omitted, emphasis added).

¶40 McKinnon has pled exactly what Larson explains is insufficient to satisfy the

requirements of § 39-71-413, MCA—that Western Sugar intentionally and deliberately

implemented a dangerous work condition that Western Sugar knew or should have known

would eventually cause an injury. These allegations do not contain a “specific and actual”

intent to injure and are therefore insufficient as a matter of law. Although the Court reasons

15
that “McKinnon specifically alleges that Western Sugar’s conduct fit within the exception to

Worker’s Compensation exclusivity at § 39-71-413, MCA,” this is the precise tactic we

rejected in Wise: “Wise’s attempt to characterize negligent conduct as ‘intentional and

deliberate’ fails to bring his claim within the ambit of § 39-71-413, MCA. . . . [The alleged

conduct] does not rise to the level of an intentional act specifically designed to cause an

injury to Wise.” Wise, ¶ 12 (citation omitted). This Court, like other courts, has steadfastly

rejected the use of conclusory statements in a pleading in the absence of factual basis.

Cowan v. Cowan, 2004 MT 97, ¶ 14, 321 Mont. 13, 89 P.3d 6 (“Facts must be viewed in a

light most favorable to the plaintiff, however, the court is under no duty to take as true legal

conclusions or allegations that have no factual basis . . . .”) (citation omitted); Ashcroft v.

Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009) (Courts “are not bound to accept as true a

legal conclusion couched as a factual allegation.”) (citation omitted); Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007) (“[A] pleading must contain

something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

cognizable right of action.”) (citation omitted).

¶41 I believe the District Court analyzed this issue correctly.

¶42 Regarding Issue 2, McKinnon filed an amended complaint on July 18, 2008, which

contained constitutional challenges to the exclusivity provision. McKinnon did not

contemporaneously notify the Attorney General in writing of his claim when he filed his

pleading. McKinnon served the amended complaint upon Western Sugar on or around

September 11, 2008. On October 1, 2008, Western Sugar moved to dismiss McKinnon’s

16
constitutional claims for failure to serve the Attorney General as required by M. R. Civ. P.

24(d). McKinnon then provided written notice to the Attorney General on October 7, 2008.

¶43 M. R. Civ. P. 24(d) provides:

When the constitutionality of any act of the Montana legislature is drawn in
question in any action, suit or proceeding to which neither the state nor any
agency or any officer or employee thereof, as such officer or employee, is a
party, the party raising the constitutionality of the act shall notify the Montana
attorney general and the court of the constitutional issue. The notice shall be
in writing, shall specify the section of the code or chapter of the session law to
be construed and shall be given contemporaneously with the filing of the
pleading or other document in which the constitutional issue is raised. The
attorney general may within 20 days thereafter intervene as provided in Rule
24(c) on behalf of the state.

(Emphasis added.) Although we have not yet addressed this provision, this issue is not

one of first impression. We interpreted former M. R. App. P. 38,2 a rule very similar to

M. R. Civ. P. 24(d), in Russell v. Masonic Home of Montana, Inc., 2006 MT 286, ¶ 20,

334 Mont. 351, 147 P.3d 216. M. R. App. P. 38 similarly provided:

It shall be the duty of a party who challenges the constitutionality of any act of
the Montana legislature in any action, suit or proceeding in the supreme court
to which neither the state nor any agency or any officer or employee thereof,
as such officer or employee, is a party, to give notice to the supreme court and
to the Montana attorney general of the existence of the constitutional issue.
This notice shall be in writing, shall specify the section of the code or chapter
of the session law to be construed and shall be given contemporaneously with
the filing of the notice of appeal or with the filing of an original proceeding in
the supreme court.

(Emphasis added.) We held in Russell that the requirement of “contemporaneously”

providing notice to the Attorney General was “an essential condition precedent.” Russell, ¶

20. Because Russell had not “contemporaneously” notified the Attorney General of her

17
appeal, we concluded that M. R. App. P. 38 prohibited this Court from addressing her

constitutional claims. Russell, ¶ 22.

¶44 Now, despite the same language as in Russell being at issue, and the same facts—that

the litigant has failed to “contemporaneously” provide notice to the Attorney General—the

Court reaches a completely different result under M. R. Civ. P. 24(d). The Court saves

McKinnon’s constitutional claims by reasoning that “the purpose and spirit of the rule were

not violated.” Opinion, ¶ 28. However, the “purpose and spirit” offered by the Court

contradicts the plain wording of the rule. See Russell, ¶ 22; § 1-2-101, MCA (“[T]he 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.” (Emphasis

added.)). The rule should be followed, or should be repealed, but it should not be ducked.

Nor should our precedent.

¶45 McKinnon, like Russell, failed to “contemporaneously” provide written notice to the

Attorney General of his constitutional challenge when he filed his pleading. I believe the

District Court correctly analyzed this issue as well.

¶46 I would affirm.

/S/ JIM RICE

2
M. R. App. P. 38 was revised and renumbered to M. R. App. P. 27. This Dissent uses the language
of M. R. App. P. 38 because it was the language the Court interpreted in Russell.
18