Klepper v. DOT
2016 MT 248N
| Mont. | 2016Background
- MDOT reconstructed Highway 93 (began 2004) and acquired right-of-way agreements with Klepper & Hagglund (2004) and Elliot (2007).
- In March 2009 construction runoff and sediment allegedly damaged Plaintiffs’ properties and Elliot’s water system.
- Plaintiffs filed suit in September 2012 asserting negligence per se, breach of contract, and violations of Montana Constitution Art. II §§ 3 and 17; seeking compensatory, punitive, and exemplary damages.
- MDOT moved for partial summary judgment: challenging Plaintiffs’ constitutional claims, asserting statute-of-limitations bars for Elliot’s torts, and denying third‑party‑beneficiary status for Elliot under the USACE permit; District Court granted those motions and precluded certain testimony by Klepper.
- Plaintiffs’ late motions to amend and to alter jury instructions were denied; after a jury trial in October 2015 the verdict favored MDOT on all issues; Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs’ constitutional claims may proceed when tort/contract remedies exist | Constitutional claims are separate and warrant relief | Contract/tort remedies provide complete relief; constitutional tort requires no adequate alternative remedy | Court: constitutional claims dismissed—no separate/distinct constitutional damages available |
| Whether Elliot’s tort claims are time‑barred | Accrual date disputed; continuing tort invoked on appeal | Claims accrued March 2009; statute of limitations expired before filing; continuing tort not raised below | Court: negligence/property damage claims barred by statute of limitations; continuing tort waived on appeal |
| Whether Elliot is a third‑party beneficiary of the USACE‑MDOT permit | Elliot contends permit confers third‑party beneficiary rights | Permit contains no language showing intent to benefit Elliot | Court: no third‑party‑beneficiary status; contract claim dismissed on that basis |
| Admissibility of Klepper’s expert testimony and contract‑interpretation testimony | Klepper proffered expert opinions on restoration damages and contract meaning | MDOT moved to exclude (failure to disclose basis; experts cannot decide legal questions) | Court: excluded Klepper’s expert testimony for failure to disclose basis; excluded contract‑interpretation testimony as improper legal opinion |
| Denial of motion to amend complaint late in litigation | Plaintiffs claimed discovery of new scientific evidence justified amendment | MDOT asserted undue prejudice and delay; Plaintiffs withheld evidence earlier | Court: denial affirmed—amendment would unduly prejudice MDOT and was untimely |
| Jury instructions / special verdict (annoyance and discomfort) | Plaintiffs sought an annoyance/discomfort instruction and interrogatory late | MDOT and court relied on agreed pretrial instructions; Plaintiffs failed to timely object | Court: no abuse of discretion—Plaintiffs acquiesced and waived the issue |
Key Cases Cited
- Pilgeram v. GreenPoint Mortg. Funding, Inc., 313 P.3d 839 (Mont. 2013) (standard of review for summary judgment)
- Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 165 P.3d 1079 (Mont. 2007) (constitutional tort only if no adequate statutory/common law remedy exists)
- Dick Anderson Const., Inc. v. Monroe Const. Co., 221 P.3d 675 (Mont. 2009) (third‑party beneficiary analysis requires clear intent in instrument)
- Krajacich v. Great Falls Clinic, LLP, 276 P.3d 922 (Mont. 2012) (experts may not testify on ultimate legal issues; contract interpretation is for the court)