JEAN WENTZ, Plaintiff and Respondent, vs. MONTANA POWER COMPANY, NORTH AMERICAN ENERGY SERVICES, ROSEBUD COUNTY, COLSTRIP MEDICAL CLINIC, WILLIAM C. ANDERSON, M.D., CAROL LANDS, P.A. AND JOHN DOE I through JOHN DOE IV, Defendants and Appellants.
No. 96-334
SUPREME COURT OF THE STATE OF MONTANA
Decided November 26, 1996
280 Mont. 14 | 928 P.2d 237 | 53 St. Rep. 1277
Submitted on Briefs November 14, 1996.
For Respondent: L. Randall Bishop, Jarussi & Bishop, Billings.
JUSTICE 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.
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 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
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.
In the instant case, noting that
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
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. ...
(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. Plaintiff sued the school district in Flathead County premising venue on
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
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
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,”
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.2d at 282. Howard did not address either a post-Carroll wrongful death claim or the specific language contained in
§ 25-2-126, MCA .
While
Likewise, we find no merit in Dr. Anderson‘s and the County‘s argument that
We noted, however, that
[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 section2-9-312(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 2-9-312(2), MCA , supersedes the venue provision contained insection 25-2-106, MCA , and exclusively determines the venue of such actions.
In 1985, the Code Commissioner renumbered and combined various venue statutes.
Finally, the Clinic and Lands argue that even though
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 is not 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,
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
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
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 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 a proper venue precludes a successful change of venue motion. Petersen, 742 P.2d at 484.
Given that the nature of the evil sought to be addressed by
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
... 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(1).
We hold that the District Court properly denied appellants’ motions for change of venue. Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.
JUSTICE 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.
The intent behind