No. 91-486
IN THE SUPREME COURT OF THE STATE OF MONTANA
FRED STANSBURY,
Plaintiff and Appellant,
-vs-
MAR 1 0 1993
PROFESSOR RUEY-LIN LIN,
Defendant and Respondent
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Craig W. Holt, Attorney at Law, Billings, Montana
For Respondent:
Norman C. Peterson, Agency Legal Services Bureau,
Helena, Montana
Donna Davis; Matovich, Addy & Keller, Billings
Montana
Bill Gianoulias, Tort Claims Division, Helena,
Montana
LeRoy H. Schramm, Chief Legal Counsel, Office of
the Commissioner of Higher Education, Helena
Montana
Submitted on Briefs: March 26, 1992
Decided: March 1 0 , 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Fred Stansbury (Stansbury) appeals from an order of the
District Court of the ~hirteenthJudicial District, Yellowstone
County, granting summary judgment in favor of the respondent,
Professor Ruey-Lin Lin (Professor Lin). We affirm.
The sole issue on appeal is whether the District Court erred
in granting summary judgment in favor of Professor Lin.
On March 26, 1990, Stansbury appeared as a student for the
first day of a sociology class taught by Professor Lin, a professor
at Eastern Montana College in Billings. Stansbury alleges that
Professor Lin demanded that he leave the classroom and that, upon
his departure from the classroom, Professor Lin slandered him in a
thirty-minute tirade to the remaining students in the class.
On January 23, 1991, Stansbury's attorney, on behalf of
Stansbury, signed a settlement agreement in which Stansbury
released Eastern Montana College and its officers, employees and
agents from any liability for any alleged slander of Stansbury by
Professor Lin. The agreement contained a clause which stated:
To resolve this case, the parties agree as follows:
1 . .
b. Nothing herein precludes Fred Stansbury from
pursing [sic] legal recourse against Professor
Ruey-Lin Lin for actions of his outside the course
and scope of employment authority of Eastern
Montana College or the Montana University System.
The agreement was also signed by representatives of Eastern Montana
College and the Montana university System. Stansbury received the
settlement provided in the agreement.
Following the execution of the settlement agreement, Stansbury
filed a slander complaint in the District Court against Professor
Lin as an individual defendant. The complaint was accompanied by
and incorporated an affidavit made by Stansbury. stansbury alleged
that Professor s in's conduct in slandering him was willful and
malicious. He sought actual and punitive damages.
Professor in moved to dismiss Stansbury's complaint, arguing
that since Stansbury had settled the slander action with Professor
Lint employer, the State of Montana, Stansbury was statutorily
s
barred by 5 2-9-305, MCA, from suing him as an individual. He fur-
ther argued that under § 2-9-305, MCA, he was individually immune
from suit. In support of his motion to dismiss, Professor Lin
submitted to the District Court the settlement agreement signed by
the representatives of the State and Stansbury's attorney. He also
submitted the affidavit of the chief legal counsel to the
Commissioner of Higher Education, which acknowledged under the
authority provided in 3 2-9-305, MCA, that Professor Lin was acting
within the scope and duty of his employment at the time of the
alleged slander.
The motion to dismiss was briefed by both parties. The
District Court determined that the parties had relied on facts not
contained in the pleadings and, therefore, converted the motion to
dismiss into a motion for summary judgment and set a date for an
evidentiary hearing.
At the evidentiary hearing, neither party presented evidence
and both waived any further presentation of evidence. The District
Court then proceeded to hear oral argument on the summary judgment
motion. Stansbury contended during oral argument that Professor
Lin was acting outside the course and scope of his employment at
the time of the alleged slander and that the State previously had
acknowledged that fact. Because there was no evidence before the
court that the State had acknowledged that Professor Lin was acting
outside the course and scope of his employment at the time of the
alleged slander, the court gave the parties additional time in
which to submit further evidence.
Professor Lin presented nothing further. Stansbury submitted
an additional affidavit of his own, Stansbury also submitted an
affidavit in which his attorney stated that during the course of
settfing with Eastern Montana College, he had spoken with JoAnne
Sherwood from the office of the Commissioner of Higher Education
and had tlexpressed distinct concern about the continuation of
a
this action against Professor Ruey-Lin Lin as an individual."
Stansburytsattorney also stated in his affidavit that the language
of the original settlement agreement had been altered to allow
Stansbury to proceed against Professor Lin individually.
Thereafter, the District Court granted summary judgment in
favor of Professor Lin, stating:
It is clear under 5 2-9-305, MCA, that an employee
whose conduct gave rise to the suit is immune from
liability by reasons of the same subject matter if the
governmental entity acknowledges that his conduct was
within the course and scope of the employeets employment.
Accordingly, the recovery, by virtue of the settlement
against the governmental entity, to wit: Eastern Montana
College, constitutes a complete bar to this action.
Counsel for the plaintiff has not produced any
evidence to constitute a bar to the application of the
express terms of the statute.
This appeal followed.
Did the District Court err in granting summary judgment in
favor of Professor Lin?
Summary judgment is proper when no genuine issues of material
fact exist and the moving party is entitled to judgment as a matter
of law. Rule 56(c), M.R.Civ.P. This Court's standard of review is
the same as the trial court's, and we will uphold a correct result
regardless of the reasons given by the lower court. Shimsky v.
Valley Credit Union (1984), 208 Mont. 186, 189-90, 676 P.2d 1308,
Eastern Montana College, as a college run by the State of
Montana, is a governmental entity as defined in Title 2, Chapter 9,
MCA. Section 2-9-101 (3) and (7), MCA. Section 2-9-305, MCA, is
entitled "Governmental entity to be joined as defendant -- immuni-
zation, defense, and indemnification of employee^.'^ Subsection (5)
of that statute provides:
Recovery aqainst a qovernmental entitv under the provi-
sions of warts 1 throuqh 3 of this chapter constitutes a
comwlete bar to any action or recovery of damases by the
claimant, by reason of the same subject matter, aqainst
the employee whose neslisence or wronqful act, error, or
omission or other actionable conduct qave rise to the
claim. In any such action against a governmental entity,
the employee whose conduct gave rise to the suit is
immune from liability by reasons of the same subject
matter if the governmental entity acknowledges or is
bound by a judicial determination that the conduct upon
which the claim is brought arises out of the course and
scope of the employee's employment, unless the claim
constitutes an exclusion provided in (b) through (d) of
subsection (6). [Emphasis added.]
The validity of this statute has not been challenged as part of
this appeal.
In interpreting statutes, we must give language its plain
meaning. Keller v. Smith (1976), 170 Mont. 399, 404-05, 553 P.2d
1002, 1006. Section 2-9-305, MCA, as a whole is not a model of
clarity in drafting. However, the first sentence of 5 2-9-305(5),
MCA, clearly prohibits any action or recovery against an employee
of the State based on the same subject matter for which recovery
has already been obtained from a governmental entity. Stansbury
has already obtained recovery, in the form of a settlement from
Eastern Montana College, for the same subject matter out of which
he now brings suit against Professor Lin. We conclude that under
the first sentence of 5 2-9-305(5), MCA, Stansbury's settlement
with Eastern Montana College is a complete bar to this lawsuit.
As stated above, the settlement between Stansbury and Eastern
Montana College provided that It[n]othing herein precludes Fred
Stansbury from pursing [sic] legal recourse against Professor Ruey-
Lin Lin for actions of his outside the course and scope of
employment authority of Eastern Montana College or the Montana
University System." Stansbury argues that this provision in the
settlement agreement affirms his continuing right to sue Professor
Lin personally. We disagree. This provision only precludes the
settlement aqreement from cutting off Stansbury's right to sue
Professor Lin. It does not cancel the statutory bar to this action
provided by 5 2-9-305(5), MCA. When he entered the settlement with
Eastern Montana College, Stansbury forfeited his right to sue
Professor Lin individually for the same acts. He may not have
chosen the best timing sequence for his settlement and lawsuit, but
that has no bearing on the right of the State to make a settlement
and it has no bearing on Professor Lints immunity.
The District Court considered, and in their briefs to this
6
Court the parties have argued, whether Professor Linlsactions were
within the course and scope of his employment, as discussed in the
second sentence of § 2-9-305(5), MCA. However, we conclude it is
immaterial whether Professor Lints actions were within the course
and scope of his employment. The second sentence of subsection (5)
applies "[iln any such action against a governmental entity." This
action, which was filed only after Stansbury settled with Eastern
Montana College, is not now and never has been an action against a
governmental entity. We conclude that the second sentence of 5 2-
9-305(5), MCA, does not apply here.
Because we have concluded that the first sentence of 5 2-9-
305(5), MCA, is, on its face, a complete bar to this action, we
hold that the District Court did not err in entering summary
judgment for Professor Lin.
Af finned.
We concur:
hief Justice
Justices
Justice Terry N. Trieweiler dissenting.
Fred Stansbury has been sandbagged twice. Once by the
attorneys for the University System, and a second time by the
Supreme Court. Therefore, I dissent.
On January 3, 1991, Stansbury filed a complaint against
Ruey-Lin Lin and Eastern Montana College (EMC). He alleged, among
other things, that on March 26, 1990, when he entered Lin's
sociology class at EMC as a student, he was ordered out of the
classroom by Lin. He further alleged that after his departure from
the room, Lin embarked on a 30 minute tirade during which he
intentionally and maliciously defamed Stansbury by referring to him
as "lazy8tand "stupid," and otherwise impugned his character and
learning ability.
In the affidavit in support of his amended complaint,
Stansbury also pointed out that Lin told the rest of the students
in the class that Stansbury was ignorant, obnoxious, incapable of
learning, and no good as a person or a student.
Shortly after the original complaint was filed, Stansbury
negotiated a settlement with EMC. However, according to the
affidavit of Stansbury's attorney, the original settlement
agreement proposed by counsel for EMC contained language that
precluded further pursuit of the claim against Lin individually.
Stansburyrscounsel made it plain to EMC's representative with whom
he negotiated that he intended to continue the claim against Lin as
an individual. Therefore, the settlement agreement was amended to
provide that:
Nothing herein precludes Fred Stansbury from pursuing
legal recourse against Professor Ruey-Lin Lin for actions
of his outside the course and scope of employment
authority of Eastern Montana College or the Montana
University System.
The amended settlement agreement was signed on January 23,
1991, and on February 20, 1991, an amended complaint was filed
naming Lin as the only defendant and repeating Stansbury's
allegation that Lin's actions were intentional and malicious.
An appearance was filed on behalf of EMC by Norman C.
Peterson, an attorney employed by the Agency Legal Services Bureau
of the Department of Justice of the State of Montana.
On March 27, 1991, Peterson filed a motion to dismiss the
complaint, and in support of that motion, filed the affidavit of
Leroy Schramm. Schramm is the Chief Legal Counsel to the
Commissioner on Higher Education, and in his affidavit stated that
the actions of Lin which were complained of by Stansbury were
committed within the course and scope of Lin's employment as a
professor at EMC.
The District Court granted the motion to dismiss because it
concluded that pursuant to 5 2-9-305, MCA, a State employee is
immune from liability for conduct which the government alleges was
within the course and scope of that person's employment. The
District Court did not hold, and Stansbury has not contended on
appeal, that Lin was immune from liability based on the strained
interpretation that the majority attaches to 5 2-9-305, MCA.
Of course, the District Court's judgment of dismissal could
not be affirmed on the basis that Lin acted within the course of
his employment because this Court has since held, in Magz~irev State of
.
Montana (Mont. 1992), 835 P.2d 755, 758-60, 49 St. Rep. 688, 689-91,
that where intentional torts are not committed for the benefit of
the employer, they are outside the course of employment as a matter
of law and the employer cannot be held vicariously liable for the
consequences of such an act. In this case, the defamatory conduct
that Lin is accused of was an intentional act, and according to the
majority opinion in Maguire, was outside the course of his
employment as a matter of law. That conclusion cannot be varied by
the self-serving affidavit of one of the State's own agents. The
State is judicially estopped from asserting inconsistent arguments
regarding the effect of an intentional act--depending on which
position best serves the State's interest in a given case.
Therefore, ignoring all rules of statutory construction, the
majority has simply concluded that based on 5 2-9-305(5), MCA,
recovery cannot be had against an employee of the State based on
the same subject matter for which recovery was had against the
State. The majority Is decision is based upon the first sentence of
§ 2-9-305(5), MCA. However, that statute contains a number of
provisions, and where a statute contains "several provisions or
particulars, such a construction is, if possible, to be adopted as
will give effect to all." Section 1-2-101, MCA.
For example, 5 2-9-305(1), MCA, provides that:
It is the purpose of this section to provide for the
immunization, defense, and indemnification of public
officers and employees civilly sued for their actions
taken within the course and scope of their employment.
[Emphasis added.]
Furthermore, the second sentence of subsection (5) explains
the first sentence by providing that:
In any such action against a governmental entity, the
employee whose conduct gave rise to the suit is immune
from liability by reasons of the same subject matter if
the aovernmental entitv acknowledqes or is bound by a
judicial determination that the conduct upon which the
claim is brouaht arises out of the course and scope of
the employee's employment ... . [Emphasis added.]
The construction of the majority ignores this provision of the
statute and ignores the express purpose of the statute which is to
immunize employees for only those acts which are in the course and
scope of their employment.
The majority opinion concludes that the second sentence is not
applicable because this action "is not now and never has been an
action against a governmental entity." The majority is incorrect.
This action started out as an action against EMC. The complaint
was amended to dismiss EMC only after a settlement was entered into
with that defendant.
The majority opinion ignores other rules of construction.
Section 1-2-102, MCA, provides that "in the construction of a
statute, the intention of the legislature is to be pursued if
possible." Section 2-9-305, MCA, makes very clear that it is the
Legislature's intent that only those employees who are acting in
the course and scope of their employment are immune from personal
liability. However, the majority is unimpressed.
section 1-2-102, MCA, further provides that "when a general
and particular provision are inconsistent, the latter is paramount
to the former, so a particular intent will control a general one
that is inconsistent with it."
The majority makes passing reference to the fact that
g 2-9-305 (5), MCA, is not a model of clarity. However, the reason
it is unclear is that the general provision contained in the first
sentence and the particular provision contained in the second
sentence are inconsistent. The first sentence provides for general
immunity for an employee when recovery has been had against the
governmental entity by whom he or she is employed. However, the
second sentence limits that immunity to cases in which there is an
acknowledgment or judicial determination that the employee acted
within the course and scope of his or her employment. Therefore,
the more particular provision found in the second sentence controls
over the general statement of intent found in the first sentence.
The majority has ignored this rule of construction.
In summary, this Court has previously held that intentional
torts are outside the course and scope of State employees'
employment. That rule of law cannot be changed by an affidavit of
one of the State's agents when it serves the State's interest to do
so. Section 2-9-305, MCA, when construed so as to accomplish the
intent of the Legislature and give effect to all of its provisions,
does not provide immunity to Lin under the circumstances in this
case because as a matter of law he was not acting within the course
and scope of his employment.
For these reasons, I dissent from the opinion of the majority
and would reverse the judgment of the District Court.
Justices John C. Harrison and William E. Hunt, Sr., concur in
the foregoing dissent.