Brishka v. DOT, 487 P.3d 771

Background:

The Brishka Trust owned a private 4.5-million-gallon fishpond above property on Big Mountain Road; the pond breached during a storm on Aug. 2–3, 2013, causing downstream damage.
In July 2015 the Brishkas sued MDT for inverse condemnation, negligence, nuisance, negligence per se, and attorney fees, alleging MDT’s 2007 reconstruction of Big Mountain Road altered drainage and caused the breach.
In a separate 2016 suit (DV-16-618), downstream owners (the Coveys) sued the Brishkas; the district court applied strict liability, found the pond an abnormally dangerous condition, and the jury awarded damages against the Brishkas.
On appeal in Covey v. Brishka this Court affirmed the strict-liability finding and the district court’s exclusion of Brishkas’ expert evidence seeking to apportion fault to MDT.
After Covey, MDT moved for summary judgment in the Brishkas’ 2015 case, asserting collateral estoppel (issue preclusion) barred relitigation of proximate cause and damages; the district court granted summary judgment on inverse condemnation, negligence, and attorney-fees claims.
The Montana Supreme Court affirmed, holding the causation and damages issues were identical and previously decided in DV-16-618/Covey, so collateral estoppel precluded the Brishkas’ claims.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether collateral estoppel bars relitigation of proximate cause (did MDT’s road work cause the pond breach?)	Brishka: causation here is a different issue and not identical to what was decided in the Covey case.	MDT: proximate cause was actually litigated and necessarily decided in DV-16-618; Brishkas had full opportunity to litigate but failed to join MDT or timely disclose experts.	Held: Yes—issue identity satisfied; proximate cause was litigated and decided; collateral estoppel applies.
Whether collateral estoppel bars relitigation of damages arising from the pond breach	Brishka: unity of damages alone shouldn’t preclude a new claim; damages for inverse condemnation differ.	MDT: damages from the breach were already adjudicated under strict liability in Covey; those same damages cannot be relitigated.	Held: Yes—damages were necessarily decided under Covey’s strict-liability ruling; precluded.
Whether framing the claim as inverse condemnation (constitutional takings) avoids preclusion	Brishka: inverse condemnation is a distinct constitutional right to just compensation and not barred by prior tort adjudication.	MDT: relabeling the same facts as a taking does not avoid issue preclusion; causation and damages are essential elements shared with prior litigation.	Held: No—new legal theory does not avoid collateral estoppel where the same essential issues (causation, damages) were decided.
Whether attorney fees and costs (under condemnation statutes) survive if underlying claims fail	Brishka: seeks fees as prevailing on an inverse-condemnation theory.	MDT: fees depend on prevailing on inverse-condemnation; if that claim fails, fees are unavailable.	Held: Fees denied—predicate claims fail, so no attorney-fee recovery.

Key Cases Cited

Baltrusch v. Baltrusch, 331 Mont. 281, 130 P.3d 1276 (sets Montana test for collateral estoppel/issue preclusion)
Covey v. Brishka, 396 Mont. 362, 445 P.3d 785 (affirmed strict-liability ruling; excluded Brishkas’ expert evidence apportioning fault to MDT)
Deschner v. State, 386 Mont. 342, 390 P.3d 152 (explains inverse-condemnation elements, including causation and damages)
Dvorak v. Metador Serv., Inc., 223 Mont. 98, 727 P.2d 1306 (equates proximate-cause analysis under strict liability and negligence)
Thelen v. Billings, 238 Mont. 82, 776 P.2d 520 (discusses proximate cause and negligence principles)