Wentz v. Montana Power Co.

No. 96-334
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996

JEAN WENTZ,
Plaintiff and Respondent,
VS.

MONTANAPOWERCOMPANY, NORTH AMERICAN
ENERGY SERVICES, ROSEBUDCOUNTY, COLSTRIP
MEDICAL CLINIC, WILLIAM C. ANDERSON, M.D.,
CAROL LANDS, P.A. AND JOHN DOE I through
JOHN DOE IV,
Defendants and Appellants.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.

COUNSELOF RECORD:
For Appellant:
Thomas M. Monaghan, Lucas & Monaghan, Miles City,
Montana (Dr. Anderson); Steven J. Harman, Tiffany B.
Lonnevik, Brown, Gerbase, Cebull, Fulton, Harman &
Ross, Billings, Montana (Colstrip Medical Clinic &
Carol Lands) ; James D. Walen, Stacey & Walen,
Billings, Montana (Rosebud County)
For Respondent:
L. Randall Bishop, Jarussi & Bishop, Billings,
Montana

Submitted on Briefs: November 14, 1996
Decided: November 26, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court

This is an appeal from an order of the Thirteenth Judicial
District Court, Yellowstone County, denying motions for change of

venue filed by certain of the defendants. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND

On November 3, 1995, Jean Wentz (Jean), plaintiff in the

underlying action, filed her complaint in the Thirteenth Judicial

District Court, Yellowstone County, alleging that on April 15,
1992, Gerald Wentz (Gerald) suffered a heart attack while on the

job performing a welding test for North American Energy Services on

the premises of Montana Power Company..
According to Jean's complaint, Gerald was initially
transported to the Colstrip Clinic (the Clinic) for treatment. She
alleges that he was then transferred from the Clinic back into the

Rosebud County EMS ambulance for transportation to Rosebud County

Hospital in Forsyth for treatment that was unavailable at the

Clinic. That trip was aborted, however, because of Gerald's
deteriorating condition, and he was returned to the Clinic.

Jean states that St. Vincent Hospital and Health Center in

Billings, Yellowstone County, Montana (St. Vincent) was then

contacted, and that its HELP helicopter was dispatched to the

Clinic. Gerald was treated by the St. Vincent's flight team, but

was pronounced dead shortly after his arrival at St. Vincent. Jean

alleges that negligent medical treatment by the Clinic and

defendants Rosebud County, William C. Anderson, M.D. (Dr. Anderson)

and Carol Lands, P.A. (Lands) reduced Gerald's chances for survival

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and caused his death on April 15, 1992.
Jean's complaint, filed in one count, claims damages of the
type recoverable in a survivorship cause of action under S, 27-I-

501, MCA, and in a wrongful death action under § 27-l-513, MCA.

Dr. Anderson and Lands are residents of Rosebud County; the

Clinic is located in Rosebud County; and Rosebud County operated

the EMS ambulance that transported Gerald to, from and then back to

the Clinic. Those defendants filed motions requesting that venue

be changed to Rosebud County arguing that Yellowstone County was

not a proper place for the trial of Jean's suit. The District
Court ruled that Jean had filed her complaint in a proper county

and denied defendants' motions. This appeal followed.

DISCUSSION

While each of the appellants and Jean frame the questions to
be resolved in this appeal somewhat differently, the basic issue is

whether the District Court erred in denying the requested change of

venue on the facts of this case.

Whether a county is a proper place for trial is a question of

law involving the application of the venue statutes to pleaded

facts. State v. Pegasus Gold Corp. (19951, 270 Mont. 32, 35, 889

P.2d 1197, 1199 (citing Minervino v. University of Montana (1993),

258 Mont. 493, 491, 853 P.2d 1242, 1245). Thus, our review of the

trial court's grant or denial of a motion for change of venue is

plenary; we simply determine whether the court's ruling was legally

correct. Peqasus, 889 P.2d at 1199 (citing Carter v. Nye (1994),

266 Mont. 226, 228, 879 P.2d 729, 730). See also Gabriel v. School

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Dist. No. 4, Libby (1994), 264 Mont. 177, 179, 870 P.2d 1351, 1352;
Emery v. Federated Foods, Inc. (19931,. 262 Mont. 83, 87, 863 P.2d
426, 429.

In the instant case, noting that § 27-l-501, MCA, requires

that survivorship and wrongful death actions be combined in one

legal action, the District Court relied primarily on our decision

in Gabriel in rejecting appellants' motions.

Dr. Anderson and, by adopting his arguments, Rosebud County,

the Clinic and Lands, contend that Gabriel is not dispositive of

the issue in this case. They base their arguments primarily on
their interpretation of §§ 25-2-122 and 25-2-126, MCA. Section 25-
2-122, MCA, provides in pertinent part:

Torts. (1) Except as provided in subsection (2),
the proper place of trial for a tort action is:
(a) the county in which the defendants, or any
of them, reside at the commencement of the action; or
(b) the county where the tort was committed. . .

Section 25-2-126, MCA, provides in pertinent part:

(2) The proper place of trial for an action against
a county is that county unless such action is brought by
a county, in which case any county not a party thereto is
also a proper place of trial.
(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.

Before addressing those arguments, however, it is necessary

that we discuss our decision in Gabriel. In Gabriel, decedent was

injured and his survivorship action arose in Lincoln County when he

fell from a roof while working on a,construction project for a

school district. His resulting death, however, occurred in

Flathead County where he was taken for medical treatment

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Plaintiff sued the school district in Flathead County premising
venue on 5 25-2-X26(3), MCA, (a suit against a political
subdivision is proper in the county where the claim arose or where

the political subdivision is located). Gabriel, 870 P.2d at 1352.
We agreed. We relied on Carroll v. W.R. Grace & Co. (1992),
252 Mont. 485, 830 P.2d 1253, in concluding that since death is the

critical and final element in the accrual of a wrongful death

action, a wrongful death claim arises for venue purposes where the

death occurs. Gabriel, 870 P.2d at 1352. Moreover, we determined
that because § 27-l-501(2), MCA, requires that survivorship and
wrongful death actions be combined in one legal action and that

because, as to this combined action, venue would properly lie
either where the survivorship claim or the wrongful death claim

arose, plaintiff's choice of a proper venue as to the wrongful

death action--the county where death occurred--precluded a

successful motion for change of venue to the county where the

survivorship action arose. Gabriel, 870 P.2.d at 1353 (citing
Petersen v. Tucker (1987), 228 Mont. 393, 396, 742 P.2d 483, 484-

85). See also 5 25-2-115, MCA.
Notwithstanding, on appeal, Dr. Anderson attempts to
distinguish Gabriel in arguing that our decision in that case

should not be followed. He contends Gabriel is of limited

precedential value because that case involved a school district (a
political subdivision) and a venue determination under § 25-2-

126(3), MCA, which pertains to political subdivisions. Dr.

Anderson maintains, that, to the contrary, no named defendant in

5
the instant case is a "political subdivision" (we will address this
contention later in this opinion). Rather, he contends (and
Rosebud County agrees) that the place of trial in this case is

controlled by 5 25-2-126(2), MCA, which provides specifically that

in an action brought against a county--here Rosebud County--venue

lies in that county. Moreover, Dr. Anderson contends that, except

for Rosebud County, all of the other defendants are "private

citizens" and, therefore, come under the general venue statute

dealing with torts, 5 25-2-122, MCA, instead of § 25-2-126(3), MCA,

dealing with political subdivisions.

In this regard, and while his argument is somewhat difficult

to follow, it appears to be Dr. Anderson's position that since the
school district in Gabriel was a "political subdivision," 5 25-Z

126(3), MCA, by its language, specifically provided for venue where

the claim "arose." However, since none of the defendants are
"political subdivisions" then the County is entitled to be sued in
Rosebud County under 5 25-2-126(2), MICA, and all defendants are

entitled to be sued in Rosebud County where the tortious acts were

"committed" under § 25-2-122(l) (b), MCA. Relying on Howard v.
Dooner Laboratories, Inc. (1984), 211 Mont. 312, 688 P.Zd 279, Dr.

Anderson contends that a tort is "committed" (as opposed to when it

"arises") where all negligent acts take place. Thus, reasons Dr.

Anderson, since all the alleged negligent acts of which Jean

complains took place in Rosebud County, the tort of wrongful death

was "committed" there. According to Dr. Anderson, determining when
the wrongful death action accrues does not address itself to the

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legal issue of where that tort is "committed" for purposes of
analyzing a case in which the general tort venue statute applies as

opposed to a venue statute that speaks in terms of where the claim

"arises."

We are not persuaded by Dr. Anderson's argument. In fact, we
rejected a similar argument in Gabriel , wherein we stated:

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 "committed," we
determined that the tort occurred where the medical
negligence took place. Howard, 688 P.Zd at 282. Howard
did not address either a post-Carroll wrongful death
claim or the specific language contained in § 25-2-126,
MCA.

Gabriel, 870 P.2d at 1353.

While 5 25-2-126(3), MCA, and 5 25-2-122(l) (b), MCA, are not

consistent in the language used, the point is that the statutory
cause of action for the tort of wrongful death cannot come into

existence until death occurs. Carroll, 830 P.2d at 1254-55.
Thus, it necessarily follows that the tort of wrongful death cannot

"arise," "accrue" or be "committed" until the critical and defining
element of this claim--death--occurs. Gabriel, 870 P.2d at 1352.
The location where death occurs is determinative for venue purposes

of where the tort of wrongful death, "arises," "accrues" or is
"committed." In this case, it is undisputed that Gerald died in

Yellowstone County. Accordingly, it is equally clear that the tort
of wrongful death for which Jean has filed suit arose, accrued and

was committed in that County.

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 Likewise, we find no merit in Dr. Anderson's and the County's
argument that § 25-Z-126(2), MCA, rather than 5 25-2-126(3), MCA,
applies to Rosebud county. Without question, these two
subparagraphs of the statute are contradictory. However, we
addressed this problem over a decade ago and resolved this issue in

Spencer v. Flathead County (19841, 212 Mont. 399, 687 P.2d 1390.

In Spencer the plaintiff filed an action against Flathead

County and the State in Lincoln County alleging wrongful arrest and

invasion of privacy in Lincoln County on a Flathead County warrant.
The defendants moved to change venue to Flathead County on the

basis that § 25-2-106, MCA, controlled the venue of actions brought

by nongovernmental entities against counties and established venue

exclusively where the county being sued is located. Spencer, 607
P.2d at 1391. Section 25-2-106, MCA, was adopted in 1877.

We noted, however, that § 2-g-312(2), MCA, adopted in 1973,
established venue in actions brought by nongovernmental entities

against counties in either the county where the cause of action

arose or where the county being sued is located. Citing Hutchinson

v. Moran (19831, 207 Mont. 330, 673 P.2d 818, we stated:

[T]he authority of a private entity to sue a county now
exists solely by virtue of 1972 Mont. Const., Art. II, §
18, and the venue of such actions is determined by the
more recently enacted section 2-g-312(2), MCA.

. .

Counties are specifically included within the
definition of a "political subdivision" by section 2-9-
101(5), MCA.
In suits brought by private entities against
counties, the new venue statute, section 2-g-312(2), MCA,
supersedes the venue provision contained in section 25-2-
106, MCA, and exclusively determines the venue of such
 actions.
Spencer, 687 P.2d at 1391-92.
In 1985, the Code Commissioner renumbered and combined various

venue statutes. Section 2-9-312, MCA, became § 25-2-126, MCA, and
subparagraphs (1) and (2), of the former § 2-9-312, MCA, became

subparagraphs (1) and (3) of § 25-2-126, MCA, respectively.

Unfortunately, 5 25-2-106, MCA, became § 25-2-126(2), MCA. Thus,
while it appears from the present arrangement of §§ 25-2-126(2) and

(3), MCA, that the legislature intended to treat counties as
something other than what they are expressly defined to be under §

2-g-101(5), MCA--i.e., political subdivisions--such a conclusion is
erroneous and derives solely from legislative oversight in failing

to repeal § 25-2-106, MCA, (now § 25-2-126(2), MCA) when § 2-9-312,
MCA, (now 5 25-2-126, MCA) was enacted and the Code Commissioner's

combining and renumbering the statutes. Section 25-2-126(2), MCA,

was and remains superseded by § 25-2-126(3), MCA. Spencer, 687
P.2d at 1391-92.

Dr. Anderson's and Rosebud County's arguments to the contrary

are without merit; Rosebud County is a political subdivision and is
subject to the venue provisions of § 25-2-126(3), MCA, in the same

manner that the school district was in Gabriel. Rosebud County may

be sued in Yellowstone County since Jean's claim of wrongful death

against Rosebud County arose in Yellowstone County, where Gerald

died.

Finally, the Clinic and Lands argue that even though § 27-l-

501(2) , MCA, requires that wrongful death and survivorship claims

9
be combined for purposes of suit, each cause of action remains
unique with a separate existence and with distinct attributes.

See, Swanson v. Champion Intern. Corp. (1982), 197 Mont. 509, 646

P.2d 1166. Consequently, according to the Clinic and Lands, 5 25-

2-116, MCA, requires that the court ascertain whether plaintiff

selected a proper venue as to both her claims, and if the county

selected is proper as to one, but not both, any defendant is

entitled to a change of venue which is proper for both claims.

Section 25-2-116, MCA, provides:

Multiple claims. In an action involving two or more
claims for which this part designates more than one as a
proper place of trial, a party entitled to a change of
place of trial on any claim is entitled to a change of
place of trial on the entire action, subject to the power
of the court to separate claims or issues for trial under
Rule 42(b) of the Montana Rules of Civil Procedure.

While the Clinic and Lands concede that venue for Jean's

wrongful death claim may appropriately lie in Yellowstone County,
they argue that Yellowstone County isnot a proper place for the

trial of Gerald's estate's survivorship claim since the alleged

negligent acts complained of all took place in Rosebud County. The

Clinic and Lands conclude that since Jean selected an improper

venue as to the survivorship claim, she waived the right to choose

the place of trial leaving it to any defendant to select venue from

among proper counties. Moreover, since the survivorship claim

requires a change of venue, § 25-2-116, MCA, allows venue to be

changed to Rosebud County for the wrongful death claim as well. We

disagree.

Section 25-2-116, MCA, was enacted in 1985. 1985 Mont. Laws

10
432. The Evidence Commission's recommendation for the adoption of

this section of the Montana Code states that it is a codification
of this Court's holdings involving venue changes in multiple claim

cases. According to the Evidence Commission,

The Court feels the rule is necessary to prevent a
plaintiff from controlling venue by adding spurious
claims that have little or no validity, but are triable
in the forum the plaintiff chooses rather than at the
normal situs which would be the defendant's residence or
another location more favorable to the defendant.

Without determining the sorts of cases to which § 25-2-116,
MCA, might apply, we conclude that since § 27-l-501(2), MCA,

specifically mandates that wrongful death and survivorship actions

be combined in one legal action, there is little likelihood that

one such claim or the other would be added spuriously by the

plaintiff simply to defeat a venue favorable to the defendant. The

evil which 5 25-2-116, MCA, seeks to address simply is not present

in these sorts of cases.

Furthermore, our decision in Gabriel addressed and rejected

essentially this same argument. In that case we agreed that

Gabriel could have sued the school district for wrongful death and

survivorship in either Lincoln County or Flathead County, as both

were proper places for trial. Gabriel, 870 P.2d at 1352.

However, also recognizing that .under § 27-l-501(2), MCA,

wrongful death and survivorship actions must be combined in one

legal action, we rejected the same argument that the Clinic and

Lands present here:
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
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 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 2 proper venue precludes a
successful change of venue motion. Petersen, 742 P.2d at
484.

Gabriel, 870 P.2d at 1353.

Given that the nature of the evil sought to be addressed by §
25-2-116, MCA, is not present here; given that § 27-I-501(2), MCA,

mandates that the plaintiff file a wrongful death and survivorship

action in one combined legal action; and given our decision in

Gabriel, that a proper venue for such a combined action can be

determined on the basis of either the survivorship action or the
wrongful death action if a proper venue for each cause of action is

different, we conclude that the trial court did not err in refusing

to apply 5 25-2-116, MCA, in the instant case.

Venue for Jean's wrongful death action is properly in
Yellowstone County because that is where Gerald died and where the

cause of action, thus, arose. That her wrongful death action
combined with the survivorship action could have also been brought

in Rosebud County because the survivorship action arose there does

not render Yellowstone County an improper place for trial for both.

If. . more than one county [is designated] as a
proper place of trial for any action, an action brought
in any such county is brought in a proper county and no
motion may be granted to change the place of trial upon
the ground that the action is not brought in a proper
county under 25-2-201(l).

Section 25-2-115, MCA
We hold that the District Court properly denied appellants'

motions for change of venue. Affirmed.

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Justices

13
Justice W. William Leaphart, specially concurring.
I concur in the result reached by the Court because I agree
that our decision in Gabriel v. School Dist. No. 4, Libby (1994),
264 Mont. 177, 870 P.2d 1351, is controlling. However, having paid
deference to stare decisis, I must note that I fail to follow the
logic of Gabriel. I agree with Justice Weber's dissent in Gabriel
in which he reasons that if you have two causes of action, one in
which venue is appropriate in county A and the other in which venue
is appropriate in counties A or B, the logical venue is the county
which is appropriate for both causes of action, i.e., county A.
See Gabriel, 870 P.2d at 1354 (Weber, J. dissenting). In the
present case, Rosebud County would be proper venue for both the
wrongful death action and the survivorship while Yellowstone County
is appropriate only for the wrongful death action.
Section 25-2-116, MCA, clearly provides that when an action
involves two or more claims, and when the law designates more than
one place as a proper place of trial, "a party entitled to a change
of place of trial on any claim is entitled to a change of place of
trial on the entire action . . . I' Since defendants would be
entitled to change of venue on the survivorship claim standing
alone, they are entitled to a change of venue on both claims. The
Court however, relying on the Evidence Commission's recommendation,
reasons that § 25-2-116, MCA, only has application when a plaintiff
has added a spurious claim in order to control venue. Since the
law requires that a wrongful death claim and a survivorship claim
be combined in one suit, the Court concludes that "[tlhe evil which

14
§ 25-2-116, MCA, seeks to address simply is not present in these
sorts of cases."
The intent behind § 25-2-116, MCA, may have been aimed at the
"evil" of spurious claims. However, that intent was not
incorporated into the statute. The plain wording of the statute
clearly applies to any suit involving "two or more claims." It
does not say "two or more claims, one of which is spurious." If
the intent of the legislature can be determined from the plain
meaning of the words used, the Court may not go further and apply
other means of construction. Wunderlich v. Lumbermens Mut. Cas.
co. (1995), 270 Mont. 404, 410, 892 P.2d 563, 567. Given that the
wording of the statute is clear and not subject to differing
interpretations, there is no call to resort to legislative history.
In my view, the statute clearly requires a change of venue to
Rosebud County. That interpretation, however, was rejected in the
Gabriel decision.

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