No. 04-735 

 IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

 2006 MT 228 

JESSICA SIKORSKI, Individually, and CHRIS CHRISTENSEN, as Personal 

Representative of the Estate of James Neumayer, Deceased, and as Personal 

Representative of the Estate of Kaitlyn Neumayer, Deceased, and 

CHRISTOPHER and LORI KNUTSEN, Individually and as Personal 

Representatives of the Estate of Amber Knutsen, Deceased, C.J. KNUTSEN, 

Individually, and KIMBERLY KNUTSEN, Individually, 

 

Plaintiffs and Appellants, 

 

 v. 

WILLIAM ANDREW JOHNSON, STATE OF MONTANA, DEPARTMENT 

OF JUSTICE, MONTANA HIGHWAY PATROL, and DEPARTMENT 

OF MOTOR VEHICLES, DRIVERS’ SERVICES BUREAU, WESTERN 

MONTANA CLINIC, P.C., and OTHER UNKNOWN DEPARTMENTS, 

AGENCIES AND PERSONS IDENTIFIED AS JOHN DOES I THROUGH V, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and For the County of Missoula, Cause No. DV 03-448 

Honorable John W. Larson, Presiding Judge 

COUNSEL OF RECORD: 

For Appellants: 

Lon J. Dale; Milodragovich, Dale, Steinbrenner & Binney, P.C., Missoula, 

Montana (for Appellants Jessica Sikorski and Chris Christensen) 

 Douglas D. Harris; Douglas Harris Law Offices, Missoula, Montana 

 (for Appellants Christopher and Lori Knutsen) 

 

For Respondents: 

 Randy J. Cox, Natasha Prinzing Jones, Thomas J. Leonard; Boone 

 Karlberg, Missoula, Montana (for Respondent State of Montana) 

 Anita Harper Poe; Garlington, Lohn & Robinson, PLLP, Missoula, 

Montana (for Respondent Western Montana Clinic) 

Submitted on Briefs: August 3, 2006 

 Decided: September 12, 2006 

Filed: 

__________________________________________ 

Clerk 
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Chief Justice Karla M. Gray delivered the Opinion of the Court. 

¶1 Plaintiffs (collectively, Sikorskis) filed this wrongful death, survival and personal 

injury action after three people were killed in an automobile collision involving a vehicle 

driven by defendant William Andrew Johnson. The Fourth Judicial District Court, Missoula 

County, dismissed Sikorskis’ claims against defendant Western Montana Clinic, P.C., 

(Clinic) and granted the motion for judgment on the pleadings filed by defendants State of 

Montana, Department of Justice, Montana Highway Patrol, and Department of Motor 

Vehicles, Drivers’ Services Bureau (collectively, State defendants), on the basis that no duty 

existed. Sikorskis appeal, and we affirm. 

¶2 Sikorskis raise two issues: 

¶3 1. Did the District Court err in granting the Clinic’s motion to dismiss? 

¶4 2. Did the District Court err in granting the State defendants’ motion for judgment on 

the pleadings? 

BACKGROUND 

¶5 James Neumayer, Kaitlyn Neumayer and Amber Knutsen died from injuries they 

sustained in a three-vehicle collision on U.S. Highway 93 South in Missoula, Montana, on 

June 8, 2000. Sikorskis--the survivors and legal representatives of the estates of the 

decedents--filed a complaint alleging Johnson’s negligent failure to properly control his 

diabetes resulted in his negligent operation of his vehicle and caused the collision. Sikorskis 

also allege negligence against the Clinic, where Johnson was a patient. They contend the 

Clinic knew or should have known from its medical evaluations of Johnson that he was unfit 
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to drive, and should have reported him to the State of Montana, Department of Motor 

Vehicles, Drivers’ Services Bureau. Finally, Sikorskis argue that, after employees of the 

State of Montana investigated a single-car accident involving Johnson in February of 2000, 

the State defendants should have known Johnson was suffering from dangerous conditions 

caused by his failure to properly control his diabetes, was unfit to operate a motor vehicle and 

constituted a menace to the motoring public. On that basis, they contend the State defendants 

breached “their duties to investigate, supervise, disseminate information about, coordinate, 

and monitor those persons unable to safely operate motor vehicles upon Montana highways.” 

¶6 The Clinic moved to dismiss the claim against it based on the absence of a duty to 

Sikorskis and the physicians’ immunity provision contained in § 37-2-312, MCA. The State 

defendants moved for judgment on the pleadings, asserting they owed no legal duty to the 

individual plaintiffs and, moreover, were immune under the doctrine of quasi-judicial 

immunity. Sikorskis moved to convert the State defendants’ motion for judgment on the 

pleadings to a motion for summary judgment. Following briefing, the District Court entered 

an opinion and order granting both the Clinic’s and the State defendants’ motions. Stating it 

had not considered any matters outside the pleadings, the court determined Sikorskis’ motion 

to convert was moot. Sikorskis then moved for M. R. Civ. P. 54(b) certification of the 

District Court’s order, and the District Court certified its opinion and order for appeal. 

¶7 In September of 2005, after the parties filed their briefs on appeal, we determined the 

District Court had failed to consider Sikorskis’ claims against the State defendants under the 

statutes in effect at the time the collision occurred. As a result, we remanded for the District 

Court’s reconsideration of the State defendants’ motion for judgment on the pleadings under 
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the 1999 version of the statutes. On remand, the District Court again granted the State 

defendants’ motion for judgment on the pleadings. The parties have rebriefed that portion of 

the appeal, and both issues are now ready for our review. 

STANDARDS OF REVIEW 

¶8 A motion to dismiss a complaint for failure to state a claim upon which relief can be 

granted has the effect of admitting all well-pled allegations in the complaint, which are to be 

taken as true. A determination that a complaint fails to state a claim upon which relief can be 

granted is a conclusion of law which we review to determine whether the district court’s 

interpretation of the law is correct. Dukes v. Sirius Const., Inc., 2003 MT 152, ¶ 11, 316 

Mont. 226, ¶ 11, 73 P.3d 781, ¶ 11 (citation omitted). 

¶9 Similarly, when a district court rules on a motion for judgment on the pleadings, the 

pleadings are to be considered in the light most favorable to the nonmoving party. Because a 

motion for judgment on the pleadings is decided as a matter of law, we determine whether 

the district court’s conclusions of law are correct. See Paulson v. Flathead Conservation 

Dist., 2004 MT 136, ¶ 17, 321 Mont. 364, ¶ 17, 91 P.3d 569, ¶ 17 (citations omitted). 

ISSUE 1 

¶10 Did the District Court err in granting the Clinic’s motion to dismiss? 

¶11 A claim may be dismissed under M. R. Civ. P. 12(b)(6) for failure to state a claim 

upon which relief can be granted only if it appears beyond a doubt that the plaintiffs can 

prove no set of facts in support of the claim which would entitle them to relief. A Rule 

12(b)(6) motion to dismiss has the effect of admitting all well-pled allegations in the 

complaint. Dukes, ¶ 11. 
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¶12 A professional corporation whose employee performs professional services within the 

scope of his or her employment or apparent authority to act for the corporation is liable to the 

same extent as the employee. See § 35-4-404(2), MCA. Sikorskis’ wrongful death, survival 

and personal injury claims against the Clinic are based on alleged negligence and gross 

negligence via unnamed Clinic employees’ failures to report Johnson to the State of 

Montana, Department of Motor Vehicles, Drivers’ Services Bureau. 

¶13 A claim of negligence involves four elements: duty, breach of duty, causation and 

damages. Massee v. Thompson, 2004 MT 121, ¶ 41, 321 Mont. 210, ¶ 41, 90 P.3d 394, ¶ 41 

(citation omitted). The question of whether a duty exists is one of law. Absent a duty, 

breach of duty cannot be established and a negligence action cannot be maintained. Debcon, 

Inc. v. City of Glasgow, 2001 MT 124, ¶ 29, 305 Mont. 391, ¶ 29, 28 P.3d 478, ¶ 29 (citation 

omitted). 

¶14 The District Court determined, as a matter of law, that the Clinic had no legal duty to 

Sikorskis. It relied on § 37-2-311(1), MCA, which provides that a physician who diagnoses a 

physical or mental condition which will significantly impair a person’s ability to safely 

operate a motor vehicle “may voluntarily” report the person’s name to the Department of 

Justice (DOJ). The court also concluded that the Clinic was immune from any liability 

pursuant to § 37-2-312, MCA. 

¶15 In interpreting statutes, we pursue the intent of the Legislature, which we determine, if 

possible, by the plain meaning of the language used. Saari v. Winter Sports, Inc., 2003 MT 

31, ¶ 22, 314 Mont. 212, ¶ 22, 64 P.3d 1038, ¶ 22 (citation omitted). A court’s function is to 

construe statutes as it finds them, not to insert what has been omitted. Section 1-2-101, 
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MCA; Greens at Fort Missoula, LLC v. City of Missoula, 271 Mont. 398, 403, 897 P.2d 

1078, 1080 (1995). 

¶16 Sikorskis do not dispute the District Court’s conclusion that the “reporting” language 

of § 37-2-311(1), MCA, is permissive rather than mandatory. Therefore, we conclude the 

District Court did not err in determining that the Clinic had no duty to “report or 

disseminate” pursuant to § 37-2-311(1), MCA. 

¶17 Sikorskis also do not dispute the clear language in the second sentence of § 37-2-312, 

MCA, that “[n]o action may be brought against a physician for not making a report pursuant 

to 37-2-311.” They argue, however, that § 37-2-312, MCA, does not provide immunity 

from liability for damages occasioned by gross negligence, relying on the first sentence of 

that statute, which grants immunity to “[a]ny physician reporting in good faith . . . except for 

damages occasioned by gross negligence.” They claim evidence--including two previous 

reports by the Clinic to the DOJ on April 25, 1997, and September 23, 1997, concerning 

Johnson’s diabetic condition--would support the allegation in their complaint that the Clinic 

acted with gross negligence in failing to report Johnson. Consequently, according to 

Sikorskis, the District Court failed to give them the benefit of the most favorable reading of 

their complaint. Here, however, the threshold issue is whether, even taking as true the factual 

portion of Sikorskis’ allegation that the Clinic’s failure to report constituted gross negligence, 

§ 37-2-312, MCA, provides the Clinic with immunity as a matter of law. 

¶18 The first sentence of § 37-2-312, MCA, grants a physician who voluntarily reports a 

patient immunity from liability except in the event damages result from gross negligence. 

The second sentence of § 37-2-312, MCA, grants complete immunity to a physician who 
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does not make a report regarding a patient. In construing a statute, a court is to ascertain and 

declare what is contained therein, not to insert what has been omitted. Section 1-2-101, 

MCA; Greens, 271 Mont. at 403, 897 P.2d at 1080. The Legislature having declined to 

provide an exception from immunity when a physician does not report a patient, we cannot 

insert such an exception into § 37-2-312, MCA. Thus, taking as true Sikorskis’ allegations 

that the Clinic did not report Johnson, we conclude § 37-2-312, MCA, does not impose a 

duty to report or subject a physician who does not report to liability. Therefore, we further 

conclude the District Court did not err in interpreting the plain language of § 37-2-312, 

MCA. 

¶19 Sikorskis also claim the Clinic waived immunity from liability under § 37-2-312, 

MCA, because it had reported Johnson to the DOJ on two previous occasions. They advance 

Idaho Asphalt Supply v. State, Dept. of Transp., 1999 MT 291, ¶ 19, 297 Mont. 66, ¶ 19, 991 

P.2d 434, ¶ 19 (citation omitted), solely for the definition of “waiver” as the voluntary and 

intentional relinquishment of a known right or privilege which may be proven by express 

declarations or by a course of acts and conduct so as to induce the belief that the intention 

and purpose was to waive the right or privilege. Sikorskis rely on Montana Mining 

Properties, Inc. v. ASARCO, Inc., 270 Mont. 458, 893 P.2d 325 (1995), for the proposition 

that waiver is a material question of fact not susceptible to a pretrial motion. 

¶20 Montana Mining Properties was an action for breach of a contract for the sale of 

mining property. The issue on appeal was whether the district court had correctly granted 

summary judgment on grounds that the defendant seller had waived his right to terminate the 

contract by delivering to the buyer documents which appeared to maintain that the contract 
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had been terminated by breach and, inconsistently, to acknowledge the continuing existence 

of a contractual right of first refusal. We reversed and remanded for trial, holding that the 

intent of the seller and whether he had voluntarily waived his right to terminate the contract 

were questions of material fact. Montana Mining Properties, 270 Mont. at 466, 893 P.2d at 

330. 

¶21 Montana Mining Properties did not involve the waiver of a right to statutory 

immunity and does not support the proposition that prior voluntary reports pursuant to § 37-

2-311, MCA, may--depending on the facts--constitute a waiver of the immunity provided 

under § 37-2-312, MCA. Thus, Montana Mining Properties is of no assistance to Sikorskis, 

and they have provided no other authority to support their claim that any earlier reports made 

by the Clinic constitute a waiver of § 37-2-312, MCA, immunity. 

¶22 Finally, Sikorskis argue that their complaint states a claim against the Clinic for 

failure to warn Johnson not to drive. Sikorskis rely on two cases from other jurisdictions 

--Myers v. Quesenberry, 144 Cal.App.3d 888 (Cal. App. 1983), and Joy v. Eastern Maine 

Medical Center, 529 A.2d 1364 (Maine 1987)--in support of their failure to warn theory. 

Sikorskis raised this argument to the District Court in their brief opposing the Clinic’s motion 

to dismiss, but the complaint contains no claim of failure to warn, and the District Court did 

not address it. 

¶23 We liberally construe pleadings. See Ryan v. City of Bozeman, 279 Mont. 507, 513, 

928 P.2d 228, 232 (1996) (citation omitted). However, we cannot properly create a cause of 

action not explicitly or implicitly stated in Sikorskis’ complaint against the Clinic where none 

exists, especially when well-pled allegations must be taken as true in considering a motion to 
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dismiss for failure to state a claim. Therefore, we decline to consider this argument further. 

¶24 We hold that the District Court did not err in granting the Clinic’s motion to dismiss. 

ISSUE 2 

¶25 Did the District Court err in granting the State defendants’ motion for judgment on the 

pleadings? 

¶26 Like their claim against the Clinic, Sikorskis’ claim against the State defendants is 

negligence-based. Sikorskis alleged that the State defendants negligently breached their 

duties to “investigate, supervise, disseminate information about, coordinate, and monitor” 

people--such as Johnson--unable to safely operate their vehicles, and that the breaches caused 

the three deaths at issue here. On remand, the District Court concluded the State defendants 

owed no duty under the 1999 version of the statutes and went on to determine that a decision 

regarding whether to issue, suspend or revoke a driver’s license qualifies for common law 

quasi-judicial immunity. The court granted the State defendants judgment on the pleadings 

on those grounds, among others. For the reasons discussed below, we agree with the District 

Court’s decision on the absence of a duty. Consequently, we need not reach Sikorskis’ 

arguments relating to quasi-judicial immunity, the public duty doctrine or a special 

relationship exception to the public duty doctrine here. 

¶27 As a threshold matter, we attempt to address Sikorskis’ argument relating to whether 

the District Court considered matters outside the pleadings and whether--or the extent to 

which--such consideration constituted error of some kind. As background, we observe that 

Sikorskis moved to amend their complaint four months before the trial court’s original order 

on pending motions. They attached two exhibits to that motion, which sought to identify a 
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State law enforcement officer as defendant John Doe I. In its original order granting the 

Clinic’s motion to dismiss and the State defendants’ motion for judgment on the pleadings, 

the District Court deemed the motion to amend moot on immunity grounds. 

¶28 On appeal from the order on remand, Sikorskis contend that the District Court 

considered one of the exhibits attached to their motion to amend, but should have considered 

both. Later, however, they contend the court refused to consider either because the matters 

were outside the pleadings. As a result, we are at a loss to understand even Sikorskis’ 

underlying premise. In any event, however, Sikorskis do not explain how the exhibits 

attached to their motion to amend could have substantially affected the District Court’s 

analysis of the State defendants’ motion for judgment on the pleadings. For those reasons, 

we do not address this matter further. 

¶29 As noted above, after the parties filed their briefs on appeal, we remanded the case to 

the District Court for consideration of Sikorskis’ claims under the 1999 statutes in effect at 

the time the collision occurred, rather than the 2003 statutes in effect at the time the court’s 

original order was entered. In its opinion and order on remand, the District Court stated the 

parties had concurred that the two versions of the statutes are identical except that the 1999 

version of § 61-5-206(1), MCA, includes additional grounds for revoking or suspending a 

driver’s license. The court concluded that difference did not constitute cause to alter its 

previous determination that the State defendants owed no duty to Sikorskis. We agree. 

¶30 Under § 61-5-206, MCA (1999), the DOJ “may” suspend the driver’s license of a 

person who has been involved as a driver in any accident resulting in death, injury or serious 

property damage. Thus, while § 61-5-206(1), MCA (1999), enumerates more circumstances 
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under which the DOJ may suspend a driver’s license than does the 2003 version of that 

statute, the authority remains discretionary. Similarly, if the DOJ receives reliable evidence 

that a licensed driver lacks the ability to exercise ordinary and reasonable control in safely 

operating a vehicle on the highway, it “may” require the licensee to obtain a medical 

evaluation or submit to one or more tests and, upon review, “may” restrict or suspend the 

license, or it “may” take no action modifying the license. See § 61-5-207(1) and (2), MCA 

(1999). By using “may” in these statutes, the Legislature has provided the DOJ discretionary 

authority to act or decline to act. We conclude the statutes do not create a duty on the part of 

the DOJ. Absent a duty, Sikorskis cannot succeed in their claim of negligence against the 

State defendants, even taking their well-pled allegations of fact as true. See Debcon, ¶ 29. 

We hold the District Court did not err in granting the State defendants’ motion for judgment 

on the pleadings. 

CONCLUSION 

¶31 We hold the District Court did not err in granting the Clinic’s motion to dismiss, 

because the Clinic was immune from liability under § 37-2-312, MCA. We further hold the 

District Court did not err in granting the State defendants’ motion for judgment on the 

pleadings, because the State defendants had no statutory duty to suspend or revoke Johnson’s 

driver’s license. 

¶32 Affirmed. 

/S/ KARLA M. GRAY 
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We concur: 

/S/ JAMES C. NELSON 

/S/ W. WILLIAM LEAPHART 

/S/ JOHN WARNER 

/S/ PATRICIA COTTER 
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