BNSF Railway Co. v. Cringle

July 6 2012

DA 11-0404

IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 143

BNSF RAILWAY COMPANY,

Petitioner and Appellee,

v.

CHAD CRINGLE,

Respondent and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDV 09-1016
Honorable Jeffrey M. Sherlock, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Peter M. Meloy, Meloy Law Firm, Helena, Montana
Terry N. Trieweiler, Trieweiler Law Firm, Whitefish, Montana

For Appellee:

Jeff Hedger, Benjamin O. Rechtfertig; Hedger Friend, P.L.L.C.;
Billings, Montana

Submitted on Briefs: May 8, 2012
Decided: July 5, 2012

Filed:

__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1 Chad Cringle appeals the order of the First Judicial District Court, Lewis and

Clark County, remanding this case to the Montana Human Rights Commission for further

proceedings in his discrimination complaint against BNSF Railway Company (BNSF).

The dispositive issue on appeal is whether BNSF has demonstrated sufficient grounds to

excuse its noncompliance with the fourteen-day filing deadline of § 49-2-505(3)(c),

MCA.

¶2 We reverse the District Court’s order and remand with instructions to deny

BNSF’s petition for judicial review and to enter judgment in favor of Cringle.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 This case is before the Court for a second time regarding the fourteen-day time

limit for appeal to the Human Rights Commission (Commission). BNSF Ry. Co. v.

Cringle, 2010 MT 290, 359 Mont. 20, 247 P.3d 706. The background is summarized

briefly before turning to the issue raised in the present appeal.

¶4 On July 7, 2008, Cringle filed a complaint with the Montana Department of Labor

and Industry charging that BNSF had illegally discriminated against him in employment.

The complaint was referred to a hearing officer for contested case proceedings. On

May 1, 2009, the hearing officer granted summary judgment to Cringle on the issue of

liability. The hearing officer determined that BNSF had “engaged in and is liable for a

discriminatory refusal to hire Cringle.” Following proceedings on the issues of damages

and affirmative relief, the hearing officer issued a final decision in Cringle’s favor on

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September 2, 2009. That same day, the hearing officer issued notice of his decision by

mail to counsel for Cringle and to counsel for BNSF.

¶5 The hearing officer’s decision and the notice of that decision were received at the

office of BNSF’s counsel the next day, September 3. This was a “particularly busy day”

at the law office, with staff working on a voluminous discovery project. The office was

short-staffed and both documents were “set aside.” Nineteen days elapsed. Then, on

September 22, a legal secretary discovered the hearing officer’s decision and the notice

“under papers” on her desk. By that time, the decision had become final under § 49-2-

505(3)(c), MCA, which states that if the hearing officer’s decision is not appealed to the

Commission within fourteen days after issuance of the notice, “the decision becomes

final and is not appealable to district court.”

¶6 BNSF filed a notice of appeal to the Commission under § 49-2-505(4), MCA.

BNSF also filed a request to the Commission for an extension of time in which to file its

notice of appeal. Citing Rule 24.9.113(3) of the Administrative Rules of Montana, BNSF

argued that the time to file its appeal to the Commission could be enlarged for good

cause. That rule provides: “Except as to dates fixed by statute and not subject to

modification, the commission may enlarge the time to perform an act. In accordance

with Rule 6(b) of the Montana Rules of Civil Procedure, the time may be enlarged for

good cause shown.” Cringle objected to BNSF’s request for an extension of time and

argued that the filing deadline is a “jurisdictional” bar that deprives the Commission of

authority to entertain untimely appeals.

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¶7 The Commission entered an order on October 5, 2009, denying BNSF’s extension

request and dismissing BNSF’s appeal. Based on the plain language of § 49-2-505(3)(c),

MCA, the Commission observed that the hearing officer’s decision became “final” on

September 16, six days before BNSF filed its notice of appeal.

¶8 BNSF sought judicial review in the District Court of the Commission’s order

dismissing its appeal. BNSF advised the District Court that the hearing officer’s decision

and notice were “either misfiled or otherwise misplaced by counsel’s staff, and the time

in which to file a notice of appeal was accordingly not placed on counsel’s calendar.”

BNSF argued that the Commission had authority to extend the fourteen-day period for

BNSF’s appeal from the hearing officer’s decision on the ground that filing periods are

subject to “equitable modification.” BNSF asked the District Court to reverse the

Commission’s decision denying BNSF’s extension request and to remand the matter to

the Commission with instructions either to accept BNSF’s notice of appeal as timely or to

consider in the first instance whether to grant BNSF’s extension request.

¶9 The Commission and Cringle filed separate motions to dismiss BNSF’s petition.

The Commission argued that its decision was in accordance with § 49-2-505(3)(c), MCA,

and that it did not have discretion to extend the statutory deadline. Cringle argued,

among other things, that the District Court could not review the hearing officer’s decision

because the fourteen-day filing deadline of § 49-2-505(3)(c) and (4), MCA, is

jurisdictional. Alternatively, Cringle argued that even if the filing deadline is a

“categorical time prescription,” rather than a jurisdictional limitation, the result is still the

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same. He observed that there is no language in § 49-2-505(3)(c), MCA, allowing the

deadline to be extended based on good cause.

¶10 The District Court concluded that § 49-2-505(3)(c), MCA, “limit[s] this Court’s

jurisdiction” over decisions of the Department of Labor and Industry by requiring that

they be appealed to the Commission within fourteen days. Thus, because subject-matter

jurisdiction cannot be forfeited or waived, the District Court decided that BNSF’s petition

must be dismissed. The court also denied BNSF’s alternative request for “a writ of

mandate, writ of review, or other appropriate writ” directing the Commission to entertain

BNSF’s appeal. The court observed that the Commission “does not have authority to

lengthen statutory deadlines.” Finally, the court granted Cringle’s and the Commission’s

cross-petitions to enforce the hearing officer’s decision.

¶11 BNSF appealed to this Court and argued that the District Court had jurisdiction to

review the dismissal order under §§ 2-4-702 and 49-2-505(9), MCA, or alternatively

under § 2-4-701, MCA. BNSF argued that the District Court had erred in interpreting the

fourteen-day filing deadline as “jurisdictional,” and asked this Court to hold that the

Commission “has the authority to extend the deadline.”

¶12 This Court articulated one issue on appeal: “Does the 14-day filing deadline in

§ 49-2-505(3)(c), MCA, deprive a district court of jurisdiction over matters arising

between the parties after the deadline has expired?” Cringle, ¶¶ 3, 12. We answered this

question in the negative, concluding that the fourteen-day filing deadline is a procedural

time bar, not a limitation on a district court’s jurisdiction. Cringle, ¶¶ 18, 20. Under § 2-

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4-702, MCA, the District Court “possesses jurisdiction to hear the parties’ dispute and

adjudicate their issues.” Cringle, ¶ 20. The Court remanded to the District Court to

consider BNSF’s “alleged good cause that would justify its motion for an extension of

time.” Cringle, ¶ 28. If BNSF made a sufficient showing, then BNSF could pursue its

appeal of the hearing officer’s decision to the Commission. Cringle, ¶ 28. Otherwise,

the District Court was directed to deny BNSF’s request for an extension. Cringle, ¶ 28.

¶13 The case now returns to this Court following the District Court’s determination on

remand that BNSF has shown good cause for its untimely filing. The District Court cited

three considerations in its ruling. First, the court observed that the fourteen-day filing

period is “a very short procedural limitation which implicates due process rights for both

claimants and respondents because valid claims can be lost because documents can easily

be misplaced for that period of time.” Second, the court concluded that Cringle would

suffer no prejudice if the fourteen-day time bar were waived because, “[i]f successful,

Cringle will be awarded his attorney fees for being required to march through the

administrative hoops, a likely appeal to this Court or federal court, and another appeal to

the Montana Supreme Court or the Ninth Circuit Court of Appeals.” Lastly, the court

stated that “it does not appear BNSF has acted in bad faith in misplacing the documents

for a short period of time and acted promptly once the documents were found.”

¶14 Alternatively, the District Court noted that under an equitable tolling or excusable

neglect standard, BNSF had presented evidence which the court viewed “as justifying

relief from the very short 14-day administrative time bar.” The court reasoned that the

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interests of justice would be served by allowing BNSF’s appeal to the Commission. The

court entered an order on July 11, 2011, remanding this case to the Commission. Cringle

timely appealed.

¶15 We now clarify that, because § 49-2-505(3)(c), MCA, is a statutory time

prescription that provides an inflexible rule of finality, “good cause” for excusing

noncompliance with the statute requires a showing of circumstances beyond the party’s

reasonable control that prevented the party from timely filing its notice of appeal.

Applying this principle, we conclude that BNSF has failed to justify relief from the time

bar.

STANDARD OF REVIEW

¶16 The parties dispute the applicable standard of review. Cringle argues that de novo

review applies, while BNSF argues that the standard is whether the District Court abused

its discretion. We conclude that de novo review applies to determine whether the facts

found by the District Court warrant a conclusion that BNSF presented circumstances

sufficient to grant it an equitable exception from the statutory filing deadline. We apply

de novo review to mixed questions of law and fact, including the district court’s

application of controlling legal principles to its factual findings. State v. Weaver, 2008

MT 86, ¶ 10, 342 Mont. 196, 179 P.3d 534. In such cases, the district court’s factual

findings will not be disturbed unless they are clearly erroneous. State v. Hass, 2011 MT

296, ¶ 13, 363 Mont. 8, 265 P.3d 1221. Thus, although we review the District Court’s

factual determinations for clear error, whether those facts satisfy the legal standard is

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reviewed de novo. Citizens Right to Recall v. State, 2006 MT 192, ¶ 6, 333 Mont. 153,

142 P.3d 764; Davis v. State, 2008 MT 226, ¶ 10, 344 Mont. 300, 187 P.3d 654 (“We

review de novo a trial court’s decision to deny a motion for equitable tolling where the

underlying facts are undisputed.”). We have recognized in other contexts that such a

“bifurcated standard of review affords appropriate deference to the trial court’s

fact-finding role and responsibility, while providing this Court with the opportunity to

review legal conclusions and the application of legal standards de novo.” State v.

Kaufman, 2002 MT 294, ¶ 12, 313 Mont. 1, 59 P.3d 1166.

DISCUSSION

¶17 On appeal, as they did before the District Court, the parties dispute what standard

BNSF had to satisfy to proceed with its appeal despite noncompliance with the appeal

deadline. This Court did not elaborate on that question in Cringle. In our decision, we

simply held that the deadline in § 49-2-505(3)(c), MCA, is a nonjurisdictional time bar

that is subject to “constitutional review and equitable principles.” Cringle, ¶ 18. The

Court cited the doctrine of equitable tolling as an example of equitable principles.

Cringle, ¶ 18. In its remand instructions, the Court directed the District Court to “hear

BNSF’s alleged good cause that would justify” an out-of-time appeal. Cringle, ¶ 28.

¶18 Cringle argues that the standard for extending a deadline which is categorical and

contains no express exceptions—like § 49-2-505(3)(c), MCA—should be greater than

the standard for extending a deadline which expressly is made subject to exceptions such

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as “good cause” or “excusable neglect.” He argues that the Court should interpret the

“good cause” language of Cringle consistently with the standard for equitable tolling.

¶19 BNSF asserts that “traditional equitable tolling” is not the standard. Rather,

focusing on the references in Cringle’s remand instruction to good cause, BNSF argues

the Court unequivocally adopted a good cause standard, which is “considerably more

lenient” than equitable tolling. BNSF argues that this Court should uphold the District

Court’s ruling on the basis of the four-factor test we articulated in N.W. Truck & Trailer

Sales v. Dvorak, 265 Mont. 327, 334, 877 P.2d 31, 35 (1994), for consideration in

assessing “excusable neglect or good cause” under Mont. R. App. P. 5(c) (1993).

¶20 We disagree that Cringle’s reference to “equitable principles” and “good cause”

created a liberal standard for excusing noncompliance with the categorical statutory time

bar contained in § 49-2-505(3)(c), MCA. We reject BNSF’s analogy to Dvorak, which

interpreted a rule of court that expressly allowed a good cause or excusable neglect

exception. We leave for another day, however, Cringle’s argument that we should apply

principles of equitable tolling to a party’s failure to meet a categorical deadline imposed

by statute.

¶21 Both in Cringle, where we remanded for a determination of “good cause,” and in

Weidow v. Uninsured Employers’ Fund, 2010 MT 292, 359 Mont. 77, 246 P.3d 704,

where we did apply equitable tolling, we emphasized “‘the importance of applying

procedural bars regularly and consistently.’” Weidow, ¶ 28; Cringle, ¶ 18 (citing cases).

Firm deadlines for launching an appeal “advance the interests of the parties and the legal

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system in fair notice and finality.” Greenlaw v. U.S., 554 U.S. 237, 252, 128 S. Ct. 2559,

2569 (2008). While we have recognized that equitable principles will in some cases

excuse strict compliance with a categorical time bar, “good cause” for such relief

necessarily requires a “legally sufficient reason.” City of Helena v. Roan, 2010 MT 29,

¶ 13, 355 Mont. 172, 226 P.3d 601. Because categorical claim-processing rules are

generally rigid, inflexible, and unalterable, Miller v. Eighteenth Jud. Dist. Ct., 2007 MT

149, ¶ 44, 337 Mont. 488, 162 P.3d 121, it necessarily follows that a “legally sufficient

reason” for excusing noncompliance with a categorical time prescription requires a

greater and more demanding showing than a “legally sufficient reason” for excusing

noncompliance with a statute or rule providing a good cause exception. While we have

rejected a “one-size-fits-all approach” in the application of equitable principles, Weidow,

¶ 28, a legally sufficient reason requires, at a minimum, reasonable effort to pursue one’s

legal rights. Puhto v. Smith Funeral Chapels, Inc., 2011 MT 279, ¶ 14, 362 Mont. 447,

264 P.3d 1142 (denying relief for a layperson’s “inattention to mail”). As we noted in

Puhto, “[l]itigants have a duty to monitor litigation.” Puhto, ¶ 10 (citing Caplis v. Caplis,

2004 MT 145, ¶ 24, 321 Mont. 450, 91 P.3d 1282). See also Irwin v. Dept. of Veterans

Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458 (1990) (characterizing an attorney’s failure

to timely discover EEOC notice as a lack of “diligence in preserving his legal rights.”).

¶22 In this regard, we reject BNSF’s characterization of the fourteen-day filing

deadline as merely “an internal agency claim-processing rule.” As the Commission

pointed out in the District Court, the Montana Human Rights Act’s short deadlines are

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designed to bring about prompt resolution of discrimination claims. See generally

Title 49, chapter 2, part 5, MCA. Section 49-2-505(3)(c), MCA, mandates that a hearing

officer’s decision is “final” unless it is appealed to the Commission within fourteen days

after issuance of the notice of decision. This period—“short” though it may be—reflects

the legislature’s general intent to expedite discrimination claims. It is therefore

appropriate to excuse noncompliance with the Human Rights Act’s appeal deadline only

where the parties have acted with reasonable diligence to preserve their legal rights but

have been prevented from doing so by circumstances reasonably beyond their control.

¶23 We therefore conclude, as we did in Arthur v. Pierre Ltd., 2004 MT 303, ¶ 42, 323

Mont. 453, 100 P.3d 987, that it is unnecessary to determine in this case whether the

equitable tolling doctrine recognized in federal discrimination cases (e.g., Irwin, 498 U.S.

at 96, 111 S. Ct. at 458) should apply to the deadlines imposed by the Montana Human

Rights Act. Even under a “good cause” standard, as discussed above, BNSF is not

entitled to relief. In this case, BNSF had participated in contested case proceedings with

a full opportunity to present evidence and legal argument. It was represented by

experienced legal counsel, familiar with the Human Rights Act’s processes, who

reasonably knew or should have known the importance of responding quickly to the

hearing officer’s decisions but simply “made a mistake.” There is no evidence that

BNSF was prevented by any factor outside its control from timely filing its appeal.

Although BNSF disputes whether Cringle would suffer prejudice if the appeal were

allowed to proceed, we conclude that consideration of potential prejudice to Cringle is

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not controlling under the circumstances presented in this case. Misplacement of the

hearing officer’s decision in counsel’s office fails to establish reasonable steps to

preserve BNSF’s legal rights. Counsel’s failure to discover the notice did not constitute

sufficient cause for relief from its untimely notice of appeal.

¶24 The July 11, 2011 order of the District Court is reversed. On remand, the court is

directed to deny BNSF’s petition for judicial review and to enter judgment in favor of

Cringle.

/S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS

Justice Brian Morris, specially concurring.

¶25 I join in the Court’s decision because the facts do not warrant our exercise of

equitable powers. I write separately to reiterate that we rejected in Weidow “any one-

size-fits-all approach” when addressing a limitations period. Weidow, ¶ 28. Equity

allows courts to evaluate the circumstances and reasons for why a party failed to comply

with a limitations period. Weidow, ¶ 28. This equitable power proves particularly critical

when a limitations period would deprive a party of his rights and where, simultaneously,
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enforcing the limitations period would serve no policy purpose. Weidow, ¶ 28. Equity

ensures just results in exceptional circumstances. Cringle, ¶ 18.

/S/ BRIAN MORRIS

Justice Michael E Wheat joins in the special concurring Opinion of Justice Morris.

/S/ MICHAEL E WHEAT

Justice James C. Nelson, concurring.

¶26 I join the Court’s Opinion, which I believe correctly resolves this case based on

the law of the case established in Cringle and on the factual circumstances presented by

BNSF on remand. I write separately to clarify my views concerning the application of

common-law equitable exceptions to categorical time prescriptions.

¶27 In resisting BNSF’s motion for an extension of time in which to file an appeal to

the Human Rights Commission, Cringle invoked the notion that the 14-day filing

deadline is “jurisdictional.” We made clear in Cringle that this deadline—and procedural

time bars generally—are not jurisdictional (in the sense that they do not deprive a court

of subject-matter jurisdiction). Cringle, ¶¶ 16-20. In so doing, we observed that

“[p]rocedural time bars, like the 14-day filing deadline in § 49-2-505(3)(c), MCA, remain

subject to constitutional review and equitable principles.” Cringle, ¶ 18. There is no

question that procedural time bars are subject to constitutional challenge and review. On
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this point, we were unanimous. See Cringle, ¶ 18 (opinion of the Court); Cringle, ¶ 39

(Rice, J., dissenting). Upon further research and reflection, however, I have reconsidered

our suggestion that all procedural time bars are subject to judicially crafted equitable

exceptions. Cringle, ¶ 18. I have now concluded that this proposition is incorrect.

Rather, each categorical time prescription must be analyzed individually, within its

statutory context and framework, so as to effect legislative intent. (The same principle

would apply to categorical time bars contained within rules of court.)

¶28 The Supreme Court’s equitable tolling jurisprudence provides some useful insights

in this regard. In Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453 (1990),

the Supreme Court observed that time requirements in lawsuits between private litigants,

including the statutory time limits applicable to lawsuits against private employers under

Title VII of the Civil Rights Act of 1964, “are customarily subject to ‘equitable tolling.’ ”

498 U.S. at 95, 111 S. Ct. at 457. The Supreme Court noted, however, that this

“presumption of equitable tolling” is “rebuttable.” Irwin, 498 U.S. at 95-96, 111 S. Ct. at

457. In order to honor legislative intent, the Irwin presumption is rebutted where “there

[is] good reason to believe that Congress did not want the equitable tolling doctrine to

apply.” United States v. Brockamp, 519 U.S. 347, 350, 117 S. Ct. 849, 851 (1997)

(emphasis in original). Thus, the Supreme Court has stated that “[e]quitable tolling is not

permissible where it is inconsistent with the text of the relevant statute.” United States v.

Beggerly, 524 U.S. 38, 48, 118 S. Ct. 1862, 1868 (1998); accord Young v. United States,

535 U.S. 43, 49, 122 S. Ct. 1036, 1040 (2002) (“It is hornbook law that limitations

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periods are customarily subject to equitable tolling, unless tolling would be inconsistent

with the text of the relevant statute.” (citations and internal quotation marks omitted)).

¶29 The tax statute under consideration in Brockamp, for example, set forth its time

limitations “in unusually emphatic form.” 519 U.S. at 350, 117 S. Ct. at 851. Moreover,

it set forth “explicit exceptions to its basic time limits, and those very specific exceptions

d[id] not include ‘equitable tolling.’ ” Brockamp, 519 U.S. at 351, 117 S. Ct. at 852. The

Supreme Court concluded, therefore, that Congress did not intend courts to read

“unmentioned, open-ended, ‘equitable’ exceptions into the statute that it wrote.”

Brockamp, 519 U.S. at 352, 117 S. Ct. at 852. Conversely, the Supreme Court concluded

in Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549 (2010), that the timeliness provision

in the federal habeas corpus statute is subject to equitable tolling. Among other things,

the Supreme Court observed that the statute did not contain “unusually emphatic”

language and that equitable tolling would not undermine the statute’s basic purposes.

Holland, 130 S. Ct. at 2561-62 (internal quotation marks omitted).

¶30 Following this logic, the application of common-law equitable doctrines to

categorical statutory time bars is a two-step process: first, determine whether the

Legislature intended to preclude the application of equitable exceptions to the time bar at

issue; second, if the Legislature did intend to preclude equitable exceptions, then the time

bar must be enforced (absent a successful constitutional challenge), but if the Legislature

did not intend to preclude equitable exceptions, then determine whether the claimed

equitable exception applies on the facts presented. Whether the Legislature intended the

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courts to read “unmentioned, open-ended, ‘equitable’ exceptions into the statute that it

wrote,” Brockamp, 519 U.S. at 352, 117 S. Ct. at 852, is a preliminary question because

equitable exceptions are not permissible where they are “inconsistent with the text of the

relevant statute,” Beggerly, 524 U.S. at 48, 118 S. Ct. at 1868.

¶31 In Lozeau v. GEICO Indem. Co., 2009 MT 136, 350 Mont. 320, 207 P.3d 316, the

governing time provision stated: “Except as provided in 27-2-216 and 27-2-217, the

period prescribed for the commencement of an action upon a liability not founded upon

an instrument in writing is within 3 years.” Section 27-2-204(1), MCA; see also

Lozeau, ¶ 13. This is not the sort of “unusually emphatic” statutory language that would

preclude the application of equitable exceptions. Indeed, we applied our equitable tolling

doctrine to Lozeau’s late-filed claim. Lozeau, ¶¶ 14-21. In the present case, in contrast,

the timing provision states that an appeal may be filed with the Commission within

14 days after notice of the hearing officer’s decision is issued, but if the appeal is not

filed within 14 days, “the decision becomes final and is not appealable to district court.”

Section 49-2-505(3)(c), (4), MCA (emphasis added). It is one thing for the Legislature to

provide a mechanism for obtaining review and to include a filing deadline. In that

situation, equitable doctrines may be available to excuse noncompliance with the

deadline. But it is quite another when the Legislature goes further and dictates that a

decision “is not appealable” if it is not appealed within the specified timeframe. In that

situation, it is not the prerogative of the courts to ignore the Legislature’s clear and

unequivocal pronouncement and to graft equitable exceptions onto the statute. In my

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view, the language “is not appealable” is a clear directive not to apply equitable

exceptions to the filing deadline. It is “ ‘an inflexible rule requiring dismissal whenever’

its ‘clock has run.’ ” Holland, 130 S. Ct. at 2560 (quoting Day v. McDonough, 547 U.S.

198, 208, 126 S. Ct. 1675, 1683 (2006)); see also Cringle, ¶ 35 (Rice, J., dissenting).

¶32 I stand by our holding in Cringle with regard to the District Court’s erroneous

“jurisdiction” rationale.1 But, for the reasons discussed above, I now conclude that we

should not have crafted an equitable exception to the filing deadline of § 49-2-505(3)(c),

MCA. For purposes of future cases, if the 14-day deadline is timely raised—by the party

who would benefit from it, by the Commission, or by the district court, see

Cringle, ¶¶ 18, 25—I believe it must be enforced, subject to constitutional challenge and

review. For purposes of this case, however, the law established in Cringle requires that

we apply a “good cause” analysis to BNSF’s motion. Cringle, ¶ 28. I believe the Court

does so correctly, and I accordingly join the Court’s Opinion.

¶33 I concur.

/S/ JAMES C. NELSON

Justices Patricia O. Cotter and Jim Rice join the Concurrence of Justice James C. Nelson.

/S/ PATRICIA COTTER
/S/ JIM RICE

1
Additionally, I continue to believe that Weidow was correctly decided on the
facts specific to that case. I would not, however, enlarge that decision beyond its facts.
17