No. 87-303
I N THE SUPREME COURT O F THE STATE O F MONTANA
1988
ROBERT P . RARRETT,
P l a i n t i f f and Respondent,
-vs-
ASARCO INCORPORATED, a N e w J e r s e y
c o r p o r a t i o n , and ROBERT D. HEARST,
D e f e n d a n t s and A p p e l l a n t s .
A P P E A L FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e H e n r y L o b l e , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Holland & Hart; J a m e s A. R a g a i n and K y l e A. Gray
a r g u e d , B i l l i n g s , Montana
For R e s p o n d e n t :
G e n e A. P i c o t t e argued a n d R o b e r t M K a m p f e r a r g u e d ,
I- Clancy, Montana
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Decided: O c t o b e r 11, 1 9 8 8
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Clerk
Mr. Justice L . C. Gulbrandson delivered the Opinion of the
Court.
ASARCO appeals a Lewis and Clark County District Court
order denying ASARCO's motion for a new trial. We reverse
and remand for a new trial.
Robert P. Barrett (Rarrett) was employed by ASARCO for
fifteen years and five months. He held a managerial position
as a shift foreman since 1973. On November 26, 1983, Barrett
injured his back in a work related accident at ASARCO's East
Helena plant. ASARCO paid Barrett his full salary and
reimbursed Barrett for medical expenses from the date of the
injury until May 8, 1984, when Barrett's employment was
terminated.
ASARCO met with Barrett on May 8, 1984. At that
meeting, the plant superintendent, Robert Hearst, confronted
Barrett with information received from another ASARCO
employee, namely, that Barrett had been observed unloading
hay bales at the Helena Fairgrounds while he continued to
receive full salary from ASARCO for his earlier back injury.
Rarrett denied any involvement in unloading hay bales, and he
was subsequently fired for lying to ASARCO about his physical
activities.
Rarrett filed this action on May 7, 1985, alleging
that ASARCO had breached the implied covenant of good faith
and fair dealing in the context of an employment
relationship. The District Court set October 31, 1986 as the
deadline for answers to interrogatories, with all discovery
to be completed by November 3, 1986. On December 16, 1986,
ASARCO learned the names of six witnesses who allegedly had
information about various incidents of dishonesty by Barrett
during his employment and within three years of his
termination date. These incidents allegedly included lying
to superiors about sleeping on shift and about taking sick
leave, stealing several hundred dollars worth of tools and
equipment from ASARCO, and requesting one of his crew members
to also steal for him. Consequently, twenty-four days prior
to trial, on January 8, 1987, ASARCO supplemented its
interrogatories and witness list to include the names of
these six witnesses.
On January 13, 1987, Barrett moved in limine to exclude
this evidence on the grounds that the testimony was
irrelevant and disclosed after the discovery deadline.
Thereafter, ASARCO offered to let Barrett depose each of the
new witnesses and to order expedited transcripts, both at
ASARCO's expense. Rarrett's attorney initially accepted this
offer but then cancelled the depositions, moving instead to
exclude this new evidence. On January 28, 1987, the District
Court ruled that Barrett was not prejudiced by ASARCO's late
disclosure of additional witnesses and service of
supplemental interrogatory answers, ruling that:
1. ASARCO was not aware of the identity
of the witnesses before the discovery
deadline ;
2. the supplemental answers were served
twenty-four days before trial;
3. Barrett had an opportunity to depose
the witnesses at ASARCO's expense but
declined to do so;
4. Barrett did not move for a
continuance. (Emphasis theirs.)
Consequently, the District Court denied Barrett's motion in
limine without prejudice.
Barrett renewed its motion in limine on February 1 ,
1987, the day before trial., asserting that ASARCO knew of the
witness testimony over five months before the discovery
deadline. On February 3, 1987, two days into the trial, the
District Court granted this motion in limine, barring the
alleged evidence of employee misconduct.
The jury trial commenced on February 2, 1987. On
February 10, 1987, the jury returned a verdict in favor of
the plaintiff in the amount of $338,500 in compensatory
damages and $75,000 in punitive damages.
On February 17, 1987, Cheryl Lynn Uphaus (Uphaus), a
person omitted from Barrett's interrogatory answers as a
person with knowledge relevant to the case, contacted ASARCO
claiming knowledge allegedly illustrating that the jury
verdict clearly was erroneous. ASARCO subsequently met with
Uphaus and she signed a sworn statement concerning a
conversation she overheard and activities she observed
Barrett engage in during his disability leave from ASARCO.
These alleged activities appeared inconsistent with a severe
back injury. She alleged that she had overheard Mike
Barrett, a fellow foreman at ASARCO, tell his brother Robert
Barrett not to haul or unload hay anymore. In response,
Barrett allegedly told his brother that he could continue to
haul hay if he concealed his activities from ASARCO.
On February 25, 1987, ASARCO moved for a new trial
alleging that it was deprived of a fair trial because of the
District Court's exclusion of witness testimony about
previous alleged incidents of Barrett's dishonest dealings
with ASARCO. Additionally, ASARCO asserted that the newly
discovered information from Uphaus merited a new trial.
The District Court denied ASARCO's motion for a new
trial and this appeal followed. ASARCO raises the following
two issues:
1. Did the District Court err and abuse its discretion
by excluding testimony concerning incidents of respondent
Rarrett's alleged dishonesty with ASARCO?
2. Did the District Court abuse its discretion by
refusing to grant appellant ASARCO a new trial based on:
(a) Barrett's failure to disclose the name of Cheryl
Lynn Uphaus in response to ASARCO's discovery requests; and
(b) the newly discovered evidence from Uphaus?
I. ISSUE Ob!E
The District Court barred the evidence of Barrett's
alleged employment dishonesty on the following five grounds:
(a) ASARCO may well have had knowledge
of some of the matters prior to the
discovery cut-off date.
(b) the instances of conduct which are
the subject of the testimony are too
remote in time to be of any probative
value;
(c) the instances of conduct had nothing
to do with the termination of Rarrett's
employment;
(dl the relevancy of the instances of
conduct is remote and the prejudicial
effect of the evidence outweighs its
probative value; and
(el allowing the testimony would lead to
"mini trials" concerning the merits of
the aI-legations made by the witnesses.
This opinion will address each of the District Court's five
grounds for excluding the evidence of Barrett's alleged
employee misconduct.
A. LATE DISCTtOSURE
The District Court's first reason for excluding
ASARCO's offered evidence was that ASARCO made a late
disclosure of the witnesses who would testify as to Barrett's
alleged employee misconduct. Rulings on the admissibility of
evidence are within the discretion of the district court.
Rule 104, M.R.Evid.; Cooper v. Rosston (Mont. 1988), 756 P.2d
1125, 1127, 45 St.Rep. 978, 981. We will not reverse a
district court's ruling on the admissibility of evidence
unless we determine that the district court abused its
discretion. Cooper, 756 P.2d at 1127, 45 St.Rep. at 981.
This Court has noted that the district court has the
discretion to control discovery activities. State of Oregon
ex rel. Worden v. Drinkwalter (Mont. 1985), 700 P.2d 150,
152, 42 St.Rep. 599, 601. It is also within the district
court's discretion to decide what sanctions are to be imposed
on a party who fails to comply with discovery rules.
Sikorski v. Olin (1977), 174 Mont. 107, 111, 568 P.2d 571,
In Sikorski, the trial court allowed Sikorski to amend
one answer to an interrogatory on the day of trial. On
appeal, Olin contended that he was surprised and prejudiced
by the trial court's decision to allow Sikorsky to amend his
interrogatories on the day of trial. This Court found it
noteworthy that Olin did not request a continuance on the
ground of surprise or undue advantage and opined that the
failure to request a continuance constituted a waiver by Olin
to claim any error on appeal. Sikorsky, 568 P.2d at 573.
Barrett asserts that, had the District Court allowed
the evidence, he would have been prejudiced because the
necessary preparation to defend the accusations of employee
dishonesty "would require more work than the main case." No
facts exist, however, which support Barrett's contention that
he would have been prejudiced. ASARCO gave notice of the new
witnesses and the content of their testimony nearly a month
before trial. ASARCO also offered to promptly have the new
witnesses deposed at its expense. Yet, Barrett refused
ASARCO's offer to bear the expenses of depositions and
expedited transcripts and also failed to request a
continuance. Barrett may not claim prejudice given these
facts.
Barrett's claim that ASARCO knew five months before the
discovery deadline of the existence of witnesses who might
testify to Barrett's alleged employee misconduct similarly
fails to merit an exclusion of the evidence. The exclusion
of evidence for noncompliance with discovery rules is a harsh
remedy. Wolfe v. Northern Pacific Railway Co. (1966), 147
Mont. 29, 40-41, 409 P.2d 528, 534. Wolfe sets forth the
following relevant language with regard to this issue:
Rule 33, M.R.Civ.P., authorizing the use
of interrogatories for purposes of
pre-trial discovery from any "adverse
party," although liberally construed to
make all relevant facts available to
parties in advance of trial and to reduce
the possibilities of surprise and unfair
advantage [citation omitted], cannot
become a weapon for punishment or
forfeiture in the hands of a party, or an
instrument for avoidance of trial on the
merits. The rule, in conjunction with
other discovery and pre-trial procedures,
has been designed to secure a just,
speedy and inexpensive determination of
actions, and to assure that a judgment be
given on the facts as they actually
exist. [Citation omitted.] Even though
under Rule 37, sanctions may be imposed
upon a party who fails to comply with the
discovery requirements of the rules, and
specifically upon a party who fails to
properly answer interrogatories,
necessarily it must lie within the
authority of the trial judge to determine
from the circumstances of each case what
constitutes compliance and non-compliance
and to determine what sanctions, if any,
are to be imposed. A strict rule of
exclusion could in many instances defeat
the desired goal of a decision on the
merits . .. In interpreting these rules
we will reverse the trial judge only when
his judgment may materially affect the
substantial rights of the appellant and
allow a possible miscarriage of justice.
Wolfe, 409 P.2d at 534. As will be discussed later in this
opinion, the excluded evidence was important to the
resolution of this case on the merits. Exclusion of this
evidence was not warranted by ASARCO's late disclosure of new
witnesses given the surrounding circumstances (i.e., ASARCO's
supplementation of its interrogatory answers twenty-four days
before trial, Barrett's refusal to depose the new witnesses
at ASARCO's expense, and Barrett's failure to request a
continuance) . ASARCO ' s alleged knowledge of the new
witnesses before the discovery deadline also does not warrant
exclusion. Consequently, Barrett's claim of prejudice by
ASARCO's late disclosure did not justify the exclusion of
this evidence which substantially affected ASARCO's rights.
Accordingly, we hold that the District Court abused its
discretion by excluding the evidence on the basis of late
disclosure.
B. REMOTENESS IN TIME
The District Court's second reason for excluding the
offered evidence was that the instances of Barrett's alleged
employee misconduct were too remote in time to be relevant.
The District Court has the discretion to determine that
evidence is too remote in time and we will not reverse the
District Court's determination of remoteness absent a
manifest abuse of that discretion. Martin v. Laurel Cable
T.V., Inc. (Mont. 1985), 696 P.2d 454, 457, 42 St.Rep. 314,
316; Preston v. McDonnell (1983), 203 Mont. 64, 67, 659 P.2d
No fixed test exists by which the district court may
determine remoteness of evidence. Rather, remoteness depends
upon both the nature of the evidence and the circumstances of
the case. Preston, 659 P.2d at 277. Given the nature of the
evidence and circumstances in Martin, this Court ruled that a
six-year-old letter was not too remote to have been admitted
into evidence. Martin, 696 P.2d at 457. However, in
Preston, this Court upheld the exclusion of two ten-year-old
documents because of their remoteness. Preston, 659 P.2d at
In the instant case, the evidence ASARCO sought to
introduce into evidence, which included acts of alleged
employee dishonesty and theft, occurred within three years of
Barrett's employment termination. Additionally, the nature
of the alleged witness testimonv excluded by the District
Court directly pertains to the issue of Barrettls honesty
with his emplover. The alleged witness testimony is thus
relevant to ASARCO ' s defense that it terminated Barrett for
his dishonesty. Given the relatively short length of time
elapsing from the occurrence of the disputed evidence until
trial, the eyewitness nature of the evidence and the
importance of the evidence to ASARCO's ultimate defense of
termination for dishonesty, we hold that the District Court
erred in excluding such evidence on the basis of remoteness
in time.
C. RELEVANCY AND THE IIFLANIGANII
RULE
The District Court stated, as its third reason for
excluding evidence, that the alleged previous incidents of
dishonesty were discovered only after ASARCO fired Rarrett
and thus were not relevant since after-acquired evidence may
not serve as additional reasons for termination of an
employee. See Flanigan v. Prudential Federal Savings & Loan
(Mont. 1986), 720 P.2d 257, 43 St.Rep. 941. After-acquired
evidence, however, may be introduced if relevant to the
character of a party when that character is an essential
element of the defendant's original defense. Rule 404 (c),
M.R.Evid., states:
Evidence of a person's character or a
trait of his character is admissible in
cases in which character or a trait of
character of a person is an essential
element of a charge, claim, or defense.
Additionally, Rule 405 (b), M. R.Evid., provides that a party
may introduce specific instances of that conduct which relate
to the character at issue.
Rule 404 (c), M.R.Evid., is directly applicable to the
evidence excluded in this case. ASARCO based its termination
decision upon Barrett's alleged dishonest about previous
hay-lifting activities. The honesty of Barrett was placed in
issue by ASARCO's defense of its termination decision.
Further, ASARCO did not seek to offer the after-acquired
evidence of Barrett's previous alleged incidents of
dishonesty as additional reasons justifying the termination
decision. Rather, ASARCO intended to demonstrate that its
original reason for terminating Barrett, namely, his alleged
dishonesty about hay-lifting activities, was indeed an honest
defense as attested to by other recent incidents of alleged
dishonesty.
The issue of Barrett's alleged previous penchant for
dishonesty with his employer is in turn critical to a
determination of whether the dishonesty alleged by ASARCO on
May 8, 1987 did in fact occur. An employer does not breach
the implied covenant of good faith and fair dealing by sudden
termination of an employee who has a reasonable expectation
of job security if the employer has a fair and honest reason
for such termination. As this Court stated in Flanigan:
The covenant, in a long-term employment
situation, only requires the employer to
have a fair and honest reason for
termination. An employee's incompetence
or lack of loyalty certainly constitute
sufficient reasons under this standard.
Flanigan, 720 P.2d at 262. A termination of an employee
because of lies to an employer certainly would constitute
such a fair and honest reason for termination. If such a
reason for termination honestly exists in this case, ASARCO
could not be held in breach of the covenant.
Further, alleged evidence of previous incidents of
dishonesty would be relevant to the issue of whether an
employee has a reasonable expectation of job security and
thus may claim the protection of the implied covenant of good
faith and fair dealing. As stated in Dare v. Montana
Petroleum Marketing Co. (Mont. 1984), 687 P.2d 1015, 41
[Tlhe implied covenant protects the
investment of the employee who in good
faith accepts and maintains employment
reasonably believing their - - secure
job is
so - - as they perform their duties
- long -
satisfactorily. (Emphasis added.)
Dare, 687 P.2d at 1020.
Protection necessarily hinges on the employee's good
faith performance of job duties because the covenant of good
faith and fair dealing mandates a reciprocal duty. The
United States Court of Appeals for the Ninth Circuit has
described this reciprocal duty of good faith and fair dealing
as a "two-way" street demanding mutual compliance. Los
Angeles Memorial Coliseum Comrn'n v. NFL (9th Cir. 1986), 791
F.2d 1356, 1361, cert. denied, 108 S.Ct. 92, 98 L.Ed.2d 53
(1987). The District Court similarly recognized the
reciprocal nature of the covenant and thus correctly offered
the following instruction to the jury:
When the covenant of good faith and fair
dealing is implied in the employment
relationship, the duty is reciprocal;
that is to say, the employer owes the
employee a duty of good faith and fair
dealing and the employee owes the
employer the same duty.
Indeed, as stated in Los Angeles Memorial Coliseum
Comm'n, an employee who breaches his or her duty of good
faith and fair dealing may not then complain of unfair
dealing by the emplover. The Ninth Circuit in
3;os Angeles Memorial ColS-seum Comrn'n thus held that the
Raiders football team franchise could not circumvent the
NFIJ1sprocedures for relocating football team franchises on
the one hand, yet maintain, on the other hand, a lawsuit
against the NFL for breach of the covenant occasioned by the
NFL's unreasonable withholding of rel-ocation authorization.
The Ninth Circuit held that breach of the implied covenant by
one party served to negate any breach by the other party,
such that neither party was entitled to recovery. See
Los Angeles Memorial Coliseum Comrn'n, 791 F.2d at 1361. The
Ninth Circuit, however, warned of the narrow application of
this rule stating:
We emphasize that our ruling does not
embrace a broad rule whereby any two
breaches of the implied good faith
promise by opposing contracting parties
constitute "offsetting penalties" which
cancel each other out; our ruling applies
only to factual contexts such as the
present one, where both breaches
concerned the same issue and occurred
during one episode of the contractual
relationship.
Los Angeles Memorial Coliseum Comm'n, 791 F.2d at 1362-63.
Similarly, Barrett cannot claim that ASARCO's alleged
sudden, "underhanded" termination decision was a breach of
the covenant of good faith and fair dealing if Barrett
himself failed to deal honestly in his job performance with
ASARCO. Recent alleged acts of dishonesty by Barrett involve
the same issue of fair dealing within the employment
relationship that Barrett alleges ASARCO breached. Evidence
of such alleged immediate dishonesty on Rarrett's part is
certainly relevant to a determination of whether Barrett had
a reasonable belief in job security and thus may claim
protection under the covenant, or whether in fact any claim
by him of a breach of good faith and fair dealing was negated
by his similar breach with ASARCO. Consequently, we hold
that the District Court erred in excluding the evidence of
Barrett's alleged employee misconduct, which misconduct is
relevant to a determination of whether Barrett dealt with
ASARCO in good faith.
ASARCO also sought to introduce evidence of alleged
employee misconduct to impeach Rarrett's character for
veracity under Rule 405, M.R.Evid., and to establish that
Rarrett had a habit or routine practice of lying to his
employers under Rule 406 M.R.Evid. ASARCO's arguments in
this regard need not be addressed in light of the above
discussion and our holding that the evidence in question is
admissible on other grounds.
D. PROBATTVE VALUE VERSUS PREJUDICIAL EFFECT
In its fourth reason for exclusion of the evidence in
question, the District Court found that, even though the
evidence might have some tangential relevancy concerning
Barrett's character and his damages, the prejudicial effect
of the evidence outweighed any probative value. Relevant
evidence is defined as that "evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more or less probable than it
would be without the evidence." Rule 401, M.R.Evid. Rule
403, M.R.Evid., allows for the exclusion of relevant evidence
"if its probative value is substantially outweighed by the
danger of unfair prejudice . .."
Evidence of Barrett's alleged employee misconduct had a
tendency to make the existence of his lack of good faith and
absence of a reasonable expectation in job security more or
less probable. The District Court instructed the jury that
Barrett's good faith must be presumed and that this
presumption could only be rebutted by proof of bad faith.
The District Court then excluded the very evidence ASARCO
offered to rebut that presumption. ASARCO contends that the
probative value of the evidence outweighs any prejudice to
Barrett because of the reciprocal nature of the covenant of
good faith and fair dealing. We agree. ASARCO was entitled
to have the jury consider all evid-ence probative on the
issues, not just the evidence favoring Barrett. We hold that.
the District Court erred in excluding the evidence on the
grounds of unfair preiudice.
E. THE MAIN ISSUES OF THE CASE
The District Court opined that the issues raised by
ASARCO's offered evidence would lead to "mini trials" which
would detract from the main issues of the case. The main
issues of this case involve allegations of breach of the
covenant of good faith and fair dealing that existed between
ASARCO and Barrett. The offered evidence is probative and
admissible because it provides evidence directly relevant to
ASARCO's central defense of alleged dishonesty and to the
reasonableness of Rarrett's expectation of job security.
Accordingly, the District Court also erred in excluding
evidence of Barrett's alleged employee misconduct on the
grounds that the evidence would detract from the main issues
of the case.
11. ISSUE TWO
ASARCO's first issue is dispositive of this appeal and,
on the basis of our holding above, this case is reversed and
remanded for a new trial. Accordingly, we will not address
ASARCO's second issue regarding newly discovered evidence.
Reversed and remanded for a new trial.
- , -
Justice
We concur:
A
Justices
Mr. Justice William E. Hunt, Sr., dissenting:
I dissent. The majority's opinion may have the effect
of severely weakening the implied covenant of good faith and
fair dealing within employment relationships. The majority
holds that Barrett's alleged dishonesty is relevant in
determining whether Barrett had a reasonable belief in job
security, which would allow him protection under the
covenant, or whether the covenant was negated by his alleged
dishonesty during the past three years. Under such
reasoning, an employer may drag up incidents from the distant
past to escape being subject to the implied covenant of good
faith and fair dealing.
Rare is the employee that can assert undying loyalty to
a company employer and a flawless work record. Consequently,
the majority's decision allows a company employer to defeat
the covenant by bringing up an employee's alleged misconduct
at trial, even though the employer had not previously
reprimanded the employee for such conduct at the time of the
conduct nor warned the employee of the serious consequences
of doing such conduct. Conceivably, the judge or jury could
determine that an employee's conduct, such as a tendency to
take ten extra minutes for a coffee break once a week for the
last three years, could defeat the covenant even though the
employer failed to state its dissatisfaction with such
practices at the time.
In Dare v. Montana Petroleum Marketing Co. (Mont. 1984),
687 P.2d 1015, 41 St.Rep. 1735, this Court held that "whether
a covenant of good faith and fair dealing is implied in a
particular case depends upon objective manifestations by the
employer giving rise to the employee's reasonable belief that
he or she has job security and will be treated fairly"
(emphasis added). 687 P.2d at 1020, 41 St.Rep. at 1739. The
covenant "protects the investment of the employee who in good
faith accepts and maintains employment reasonably believing
their job is secure so long as they perform their duties
satisfactorily" (emphasis added) . 687 P.2d at 1020, 41
St.Rep. at 1740. While the majority implies that the holding
in Dare is still applicable, their holding in the instant
case creates an uncomfortable ambiguity. In Dare, the
applicable standard for an employee to assert the implied
covenant of good faith and fair dealing is an "objective
manifestation by employer" and a "reasonable belief" by the
employee of job security.
In the present case, Barrett had worked for ASARCO for
over fifteen years before he was fired. He had held a
managerial position as a shift foreman since 1973. No
evidence exists that would indicate that Barrett failed to
perform his duties as a shift foreman satisfactorily. The
record indicates that Barrett was fired solely because
witnesses had allegedly seen him unloading bales of hay
despite his severe back injury. When the trial drew near,
however, ASARCO relied upon past conduct of Barrettls that
ASARCO found undesirable, and boldly asserts that such
conduct would rebut an employee's reasonable belief of job
security even after fifteen years of service with ASARCO.
I have no reservation in requiring an employee to act in
good faith and deal fairly with the employer, however, I
object to the holding that would allow an employer to rebut
the implied covenant of good faith and fair dealing it owes
to an employee when the employer gave no objective
manifestations that it was displeased with the employee, and
now claims that the employee has no reasonable belief of job
security because of something the employee may have done
three years ago or more. An employer has a duty to the
employee to act in good faith and deal fairly with the
employee, this would include warning the employee, at the
time of an undesirable conduct by the employee, that the
conduct, if continued, may lead to the employee's firing.
I also assert that the majority erroneously applied the
Ninth Circuit Court decision, Los Angeles Memorial Coliseum
Comm'n v. NFL (9th Cir. 1986), 791 F.2d 1356, cert. denied,
108 S.Ct. 92, 98 L.Ed.2d 53 (1987) in this case. The court
in Los Angeles Memorial Coliseum Comm'n specifically stated
that the rule enunciated in that case applies only when "both
breaches concerned the same issue and occurred during one
episode of the contractual relationship." - Angeles
Los
Memorial Coliseum Comm'n, 791 F.2d at 1362-63. In the
present case, Barrett's alleged past conduct, that may have
occurred three years ago and which may have included taking a
nap while at work, cannot be considered the same issue or
episode as whether he lifted hay bales after his back injury.
I contend that the majority's broad application of this rule
is exactly what the Ninth Circuit's warning intended to guard
against.
I would therefore hold that ASARCO should not be allowed
to rebut the implied covenant of good faith and fair dealing
by introducing evidence of Barrett's alleged conduct which
ASARCO is apparently using only to justify its firing of
Barrett. P
I concur in the foregoing dissent of Justice Hunt.
,
/ Justice
( '
1
I N THE SUPREME COURT OF THE STATE OF MONTAbJA
No. 87-303
ROBERT P . BARRETT,
P l a i n t i f f a n d Respondent.,
1
v. 1 O R D E R
1
ASARCO INCORPORATED, a N e w J e r s e y
c o r p o r a t i o n , a n d ROBERT D. IIRARST,
Defendants and A p p e l l a n t s .
--
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..
C;>
( r')
.
-1-j
< -: - .-
3
0 -
The i n i t i a l o p i n i o n i n t h i s c a u s e w a s d e c i d e d a n d f i l e d I
-n \ 1
with t h e Clerk o f t h i s C o u r t on O c t o b e r ll., 1988. r!I,t SZb
-.. I -'
since to
come the attention of this Court xhiti-a
r .
typographical error e x i s t s and we therefore or&r t
%
2J
-4
f o l l o w i n g change:
I T I S ORDERED:
1. T h a t t h e d a t e shown a s May 8 , 1987 on page 1871 o f
45 State Reporter and on page 32 of 763 Pacific 2d. be
changed to reflect the correct date of May 8, 1384 and
t h e r e a f t e r t o read:
The i s s u e o f R a r r e t t ' s a l . l e g e d p r e v i o u s
penchant f o r d i s h o n e s t y w i t h h i s employer
i s i n t u r n crit.ica1 t o a d e t e r m i n a t i o n o f
w h e t h e r t h e d i s h o n e s t y a l l e g e d b y ASARCO
o n May 8, - d i d i n f a c t occur.
1984
!Change e m p h a s i z e d . )
narrett v. ASARCO Inc. (Mont. 1988), 763 P.2d 27, 33, 45
DATED t h i s y% d a y o f May, 1 9 8 9 .