Foy v. Anderson

                                    No. 14029

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        1978



DARBY J. FOY and JO ANN K. GILREATH,

                          Plaintiffs and Respondents,

              -vs-
DAVID R. ANDERSON,
                 Defendant and Third Party Plaintiff and
                   Appellant,
               -vs-
FARMERS INSURANCE EXCHANGE, an insurance
corporation, BUD SMITH, THE STATE OF MONTANA
DEPARTMENT OF HIGHWAYS and KAREN EGGAN,
                 Third Party Defendants.



Appeal from:         District Court of the First Judicial District,
                     Honorable Nat Allen, Judge presiding.

Counsel of Record:

    For Appellant:

          Smith Law Firm, Helena, Montana
          Robert J. Sewell, Jr. argued, Helena, Montana

    For Respondents:

          Patrick F. Hooks, Townsend, Montana
          Daley and Sherlock, Kalispell, Montana
          Gough, Shanahan, Johnson and Waterman, Helena, Montana
          Penwell and Bryan, Bozeman, Montana
          Mark A. Bryan argued, Bozeman, Montana



                                                Submitted:   May 2, 1978

                                                  Decided =JUN   1. ? 1978
Filed:   JUN ":.   1:3W
Mr. Justice Gene B. Daly delivered the Opinion of the Court:


      This is an appeal from the dismissal of a third party

declaratory action filed in the District Court, Lewis and

Clark County.

      On September 5, 1975, Karen Eggan was a passenger with
Darby Foy in a Volkswagen driven by Jo Ann K. Gilreath.     The

Gilreath car was struck in the rear by David R. Anderson who was

d~iving   his car in the same direction.    Both Jo Ann K. Gilreath

and Darby J. FOY sustained injuries as a result of the accident.

Karen Eggan sustained only minor injuries.      Subsequently Foy and

Gilreath brought separate actions against David Anderson to re-

cover for personal injuries and property damage.      Karen Eggan

has never presented a claim for damages against David Anderson and

does not contemplate doing so.

      David R. Anderson alleges that Karen Eggan has asserted a

claim against him for personal injuries based upon the affidavit

of Gary W. Younker an insurance agent who went to the Eggan

residence to get a statement concerning the accident.     Karen

Eggan was not at home so Younker spoke with Karen's mother.

Younker alleges in his affidavit that at some point during that

conversation Mrs. Eggan stated they "were contemplating getting an

attorney and joining in the lawsuit."      Younker has never spoken with

Karen Eggan.    There has been no allegation by David R. Anderson

that Karen Eggan has made a statement that she has ever contem-

plated joining the lawsuit.

      David Anderson purchased a policy of insurance from Farmers

Insurance Exchange on the automobile he was driving at the time

of the collision.    After the collision a dispute arose between



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Anderson and Farmers Insurance Exchange whether coverage was

afforded Anderson under the policy.          Farmers refused coverage

and would not defend the Gilreath and Foy actions.          David Anderson

then commenced a third party declaratory judgment action pursuant

to Rule 57, M.R.Civ.P., and sections 93-8901 to 93-8916, R.C.M.

1947, on April 1, 1977, against Farmers Insurance Exchange, its

agent who sold the insurance and also against the state of Montana

Department of Highways and Karen Eggan.         The basis of the third

party action for declaratory judgment against the state of

Montana and Karen Eggan is that both parties have asserted a

claim for damages against him arising from the automobile accident

and that common issues of law and fact are involved in the actions.

         On April 18, 1977, Karen Eggan filed her motion to dismiss

and a supporting brief.          David Anderson filed his brief in

opposition to the motion to dismiss and included the affidavit

of Gary W. Younker.       Subsequently Karen Eggan filed a supplemental

brief.     On   April 21, 1977, Hon. Gordon R. Bennett granted David

R. Anderson's motion for consolidation, and consolidated Lewis

and Clark County District Court's Cause No. 40502 with and into

its Cause No. 40497.       On   April 25, 1977, Hon. Nat Allen assumed

jurisdiction of Cause No. 40497.         Because Karen Eggan's motion

to dismiss was not decided by Judge Bennett before Judge Allen

assumed jurisdiction the matter was submitted to Judge Allen for

resolution.       On September 7, 1977, Judge Allen entered his order

dismissing Karen Eggan as third party plaintiff and awarded her

$200 attorney fees.      The order states:

               "Third party defendant Karen Eggan's motion
         for an order dismissing the Third Party Plaintiff's
         claim having been briefed to the Court by both sides,
         and the Court being fully advised in the premises;



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            "IT IS ORDERED that said motion is hereby
      granted and allowed, and Karen Eggan is dismissed
      as a party to this suit for the reason she was not
      injured and has no claim against third party plaintiff,
      and to do otherwise would be forcing litigation on
      the plaintiff that does not wish to sue.

            "IT IS FURTHER ORDERED that she be granted an
      Attorney fee of $200.00 against Defendant David R.
      Anderson."

      We note that not until after the motion to dismiss and

briefs had been submitted and Karen Eggan had incurred legal

expenses was any offer tendered to her to be released from

the law suit and the offer did not include the payment of the

legal expenses she had incurred.

      The issues presented on appeal for the Court's considera-

tion are:

      1)    Whether the District Court properly dismissed Karen

Eggan as a party in the action?

      2)    Whether the District Court properly awarded Karen

Eggan attorney fees?

      Plaintiff Anderson is seeking to compel defendant Eggan

to bring a complaint against him for personal injuries that she

allegedly suffered as a result of the automobile collision on

September 5, 1975.     Such a complaint violates both the letter

and the spirit of the law. The Montana Rules of Civil Procedure were

enacted to provide for a complete adjudication of all claims

arising out of a single occurrence; the rules were not designed

to encourage or promote litigation, as plaintiff Anderson seeks

to do, by requiring defendant Eggan to appear and bring suit.

      The contention of plaintiff Anderson that Karen Eggan is a

necessary party to this suit cannot be sustained.     Eggan is not

an indispensable party under Rule 19, M.R.Civ.P.    The insurance

company's liability on the insurance contract can be decided


                            - 4 -
                                                                 •




without Karen Eggan.     In the language of Rule 19, M.R.Civ.P.,

a person is an indispensable party if in his absence complete

relief cannot be granted.     This is not the case here.

         The Montana Declaratory Judgments Act contains no express

requirement that all parties with interest must be joined.           There

is no language in the Act from which such a requirement can be

implied.     Section 93-8911 provides:

               "Parties. When declaratory relief is sought,
         all persons shall be made parties who have or claim
         any interest which would be affected by the declara-
         tion, and no declaration shall prejudice the rights
         of persons not parties to the proceeding. * * ~,

         Defendant Eggan asserts no claim   or interest with respect

to this insurance policy coverage or in the lawsuit.       Further,

Count No. IV relating to Karen Eggan does not state a claim

for which relief can be granted under the Declaratory Judgments

Act.     22 Am Jur 2d, Declaratory Judgments §§ 10,11,18,19,23.

         Plaintiff Anderson points out that the law in Montana

regarding attorney fees, in the absence of a specific contractual

or statutory grant, is that the prevailing party in an action is

not entitled to an award of attorney fees either as costs of the

action or as an element of damages.      Bitney v. School District

No. 44, (1975), 167 Mont. 129, 535 P.2d 1273;     McMahon v. Falls

Mobile Home Center, Inc., (1977), ____Mont. ____ , 566 P.2d 75,

34 St.Rep. 584; Nikles v. Barnes, (1969), 153 Mont. 113, 454 P.2d

608.

         The cited law is correct in regard to attorney fees.        However,

it must be remembered that the District Court has discretionary

power in dismissing an action as it did in this case.      The court

also reserves the power to grant complete relief under its equity

power.     This is meant to establish no precedent, but must be

determined on a caSe by case basis.


                             - 5 -
                                                               "


      If equity is to be done in a situation such as this, the

attorney fee must be sustained.     Plaintiff Anderson sought to

bring defendant Eggan into the lawsuit when she had asserted no

claim against him and had no intention of doing so.     For this

reason she submitted a motion to dismiss which was granted by the

trial court.    Plaintiff Anderson forced her to secure the services

of an attorney to examine the case and submit a motion to dismiss

and through no fault on her part to incur attorney fees and costs.

If defendant Eggan is dismissed from the case and not awarded

attorney fees, she will not be made whole or returned to the same

position as before plaintiff Anderson attempted to bring her into

the lawsuit.

      Judgment of the District Court is affirmed •




                               ./



We Concur:



Chief Justice



~.~___ cg,.,«W'1




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                                                                  .



Mr. Chief Justice Frank I. Haswell, dissenting

            I respectfully dissent to the award of attorney fees.

            The majority recognize that attorney fees cannot be

awarded to the prevailing party in the absence of statute or

contract.     Here there is neither.    The award is justified on the

basis of making the prevailing party whole and granting complete

relief.     This justification is equally applicable to any defen-

dant who is sued, hires an attorney, and ultimately prevails.

            In my view, this decision constitutes a sharp break

from existing law, the denial of precedential value by the major-

ity notwithstanding.     If the prevailing defendant is to be made

whole and granted complete relief, why doesn't this case establish

a precedent?

            Substantial arguments can be made for and against award-

ing attorney fees to the prevailing party in a lawsuit.       In my

view this is a matter of public policy to be resolved by the legis-

lature.     To date the legislature has not seen fit to grant attorney

fees to a prevailing defendant (except in certain instances not

pertinent to this case, e.g. eminent domain and reciprocal rights

statutes).

            I would adhere to existing law and require statutory

authorization for an award of attorney fees in the absence of

contract.



                                 ---?~-~-g&~~-------
                                            Chief Justice




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