No. 96-334 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

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. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas M. Monaghan, Lucas & Monaghan, Miles City, 

Montana (Dr. Anderson); Steven J. Harman, Tiffany B. 

Lonnevik, Brown, Gerbase, Cebull, Fulton, Harman & 

Ross, Billings, Montana (Colstrip Medical Clinic & 

Carol Lands) ; James D. Walen, 

Billings, 

Stacey & Walen, 

Montana (Rosebud County) 

For Respondent: 

L. Randall Bishop, Jarussi & Bishop, Billings, 

Montana 

Filed: 

Submitted on Briefs: November 14, 1996 

Decided: November 26, 1996 
Justice James C. 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. 

FACTUAL AND PROCEDURAL BACKGROUND 

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 

2 
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 S, 27-I501, MCA, and in a wrongful death action under § 27-l-513, MCA. 

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. 

Whether a county is a proper place for trial is a question of 

law involving the application of the venue statutes to pleaded 

facts. State v. Pegasus Gold Corp. (19951, 270 Mont. 32, 35, 889 

P.2d 1197, 1199 (citing Minervino v. University of Montana (1993), 

258 Mont. 493, 491, 853 P.2d 1242, 1245). Thus, our review of the 

trial court's grant or denial of a motion for change of venue is 

plenary; we simply determine whether the court's ruling was legally 

correct. Peqasus, 889 P.2d at 1199 (citing Carter v. Nye (1994), 

266 Mont. 226, 228, 879 P.2d 729, 730). See also Gabriel v. School 

3 
Dist. No. 4, Libby (1994), 264 Mont. 177, 179, 870 P.2d 1351, 1352; 

Emery v. Federated Foods, Inc. (19931,. 262 Mont. 83, 87, 863 P.2d 

426, 429. 

In the instant case, noting that § 27-l-501, MCA, requires 

that survivorship and wrongful death actions be combined in one 

legal action, the District Court relied primarily on our decision 

in Gabriel in rejecting appellants' motions. 

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 §§ 25-2-122 and 25-2-126, MCA. Section 25- 

2-122, MCA, provides in pertinent part: 

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. . . 

Section 25-2-126, MCA, provides in pertinent part: 

(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 

4 
Plaintiff sued the school district in Flathead County premising 

venue on 5 25-2-X26(3), MCA, (a suit against a political 

subdivision is proper in the county where the claim arose or where 

the political subdivision is located). Gabriel, 870 P.2d at 1352. 

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 § 27-l-501(2), MCA, requires that survivorship and 

wrongful death actions be combined in one legal action and that 

because, as to this combined action, venue would properly lie 

either where the survivorship claim or the wrongful death claim 

arose, plaintiff's choice of a proper venue as to the wrongful 

death action--the county where death occurred--precluded a 

successful motion for change of venue to the county where the 

survivorship action arose. Gabriel, 870 P.2.d at 1353 (citing 

Petersen v. Tucker (1987), 228 Mont. 393, 396, 742 P.2d 483, 484- 

85). See also 5 25-2-115, MCA. 

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 § 25-2- 

126(3), MCA, which pertains to political subdivisions. Dr. 

Anderson maintains, that, to the contrary, no named defendant in 

5 
the instant case is a "political subdivision" (we will address this 

contention later in this opinion). Rather, he contends (and 

Rosebud County agrees) that the place of trial in this case is 

controlled by 5 25-2-126(2), MCA, which provides specifically that 

in an action brought against a county--here Rosebud County--venue 

lies in that county. Moreover, Dr. Anderson contends that, except 

for Rosebud County, all of the other defendants are "private 

citizens" and, therefore, come under the general venue statute 

dealing with torts, 5 25-2-122, MCA, instead of § 25-2-126(3), MCA, 

dealing with political subdivisions. 

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," 5 25-Z 

126(3), MCA, by its language, specifically provided for venue where 

the claim "arose." However, since none of the defendants are 

"political subdivisions" then the County is entitled to be sued in 

Rosebud County under 5 25-2-126(2), MICA, and all defendants are 

entitled to be sued in Rosebud County where the tortious acts were 

"committed" under § 25-2-122(l) (b), MCA. Relying on Howard v. 

Dooner Laboratories, Inc. (1984), 211 Mont. 312, 688 P.Zd 279, Dr. 

Anderson contends that a tort is "committed" (as opposed to when it 

"arises") where all negligent acts take place. Thus, reasons Dr. 

Anderson, since all the alleged negligent acts of which Jean 

complains took place in Rosebud County, the tort of wrongful death 

was "committed" there. According to Dr. Anderson, determining when 

the wrongful death action accrues does not address itself to the 

6 
legal issue of where that tort is "committed" for purposes of 

analyzing a case in which the general tort venue statute applies as 

opposed to a venue statute that speaks in terms of where the claim 

"arises." 

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.Zd at 282. Howard 

did not address either a post-Carroll wrongful death 

claim or the specific language contained in § 25-2-126, 

MCA. 

Gabriel, 870 P.2d at 1353. 

While 5 25-2-126(3), MCA, and 5 25-2-122(l) (b), MCA, are not 

consistent in the language used, the point is that the statutory 

cause of action for the tort of wrongful death cannot come into 

existence until death occurs. Carroll, 830 P.2d at 1254-55. 

Thus, it necessarily follows that the tort of wrongful death cannot 

"arise," "accrue" or be "committed" until the critical and defining 

element of this claim--death--occurs. Gabriel, 870 P.2d at 1352. 

The location where death occurs is determinative for venue purposes 

of where the tort of wrongful death, "arises," "accrues" or is 

"committed." In this case, it is undisputed that Gerald died in 

Yellowstone County. Accordingly, it is equally clear that the tort 

of wrongful death for which Jean has filed suit arose, accrued and 

was committed in that County. 

7 
Likewise, we find no merit in Dr. Anderson's and the County's 

argument that § 25-Z-126(2), MCA, rather than 5 25-2-126(3), MCA, 

applies to Rosebud county. Without question, these two 

subparagraphs of the statute are contradictory. However, we 

addressed this problem over a decade ago and resolved this issue in 

Spencer v. Flathead County (19841, 212 Mont. 399, 687 P.2d 1390. 

In Spencer the plaintiff filed an action against Flathead 

County and the State in Lincoln County alleging wrongful arrest and 

invasion of privacy in Lincoln County on a Flathead County warrant. 

The defendants moved to change venue to Flathead County on the 

basis that § 25-2-106, MCA, controlled the venue of actions brought 

by nongovernmental entities against counties and established venue 

exclusively where the county being sued is located. Spencer, 607 

P.2d at 1391. Section 25-2-106, MCA, was adopted in 1877. 

We noted, however, that § 2-g-312(2), MCA, adopted in 1973, 

established venue in actions brought by nongovernmental entities 

against counties in either the county where the cause of action 

arose or where the county being sued is located. Citing Hutchinson 

v. Moran (19831, 207 Mont. 330, 673 P.2d 818, we stated: 

[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 section 2-g-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-g-312(2), MCA, 

supersedes the venue provision contained in section 25-2- 

106, MCA, and exclusively determines the venue of such 
actions. 

Spencer, 687 P.2d at 1391-92. 

In 1985, the Code Commissioner renumbered and combined various 

venue statutes. Section 2-9-312, MCA, became § 25-2-126, MCA, and 

subparagraphs (1) and (2), of the former § 2-9-312, MCA, became 

subparagraphs (1) and (3) of § 25-2-126, MCA, respectively. 

Unfortunately, 5 25-2-106, MCA, became § 25-2-126(2), MCA. Thus, 

while it appears from the present arrangement of §§ 25-2-126(2) and 

(3), MCA, that the legislature intended to treat counties as 

something other than what they are expressly defined to be under § 

2-g-101(5), MCA--i.e., political subdivisions--such a conclusion is 

erroneous and derives solely from legislative oversight in failing 

to repeal § 25-2-106, MCA, (now § 25-2-126(2), MCA) when § 2-9-312, 

MCA, (now 5 25-2-126, MCA) was enacted and the Code Commissioner's 

combining and renumbering the statutes. Section 25-2-126(2), MCA, 

was and remains superseded by § 25-2-126(3), MCA. Spencer, 687 

P.2d at 1391-92. 

Dr. Anderson's and Rosebud County's arguments to the contrary 

are without merit; Rosebud County is a political subdivision and is 

subject to the venue provisions of § 25-2-126(3), MCA, in the same 

manner that the school district was in Gabriel. Rosebud County may 

be sued in Yellowstone County since Jean's claim of wrongful death 

against Rosebud County arose in Yellowstone County, where Gerald 

died. 

Finally, the Clinic and Lands argue that even though § 27-l501(2) , MCA, requires that wrongful death and survivorship claims 

9 
be combined for purposes of suit, each cause of action remains 

unique with a separate existence and with distinct attributes. 

See, Swanson v. Champion Intern. Corp. (1982), 197 Mont. 509, 646 

P.2d 1166. Consequently, according to the Clinic and Lands, 5 25- 

2-116, MCA, requires that the court ascertain whether plaintiff 

selected a proper venue as to both her claims, and if the county 

selected is proper as to one, but not both, any defendant is 

entitled to a change of venue which is proper for both claims. 

Section 25-2-116, MCA, provides: 

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 isnot 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, § 25-2-116, MCA, allows venue to be 

changed to Rosebud County for the wrongful death claim as well. We 

disagree. 

Section 25-2-116, MCA, was enacted in 1985. 1985 Mont. Laws 

10 
432. The Evidence Commission's recommendation for the adoption of 

this section of the Montana Code states that it is a codification 

of this Court's holdings involving venue changes in multiple claim 

cases. According to the Evidence Commission, 

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 § 25-2-116, 

MCA, might apply, we conclude that since § 27-l-501(2), MCA, 

specifically mandates that wrongful death and survivorship actions 

be combined in one legal action, there is little likelihood that 

one such claim or the other would be added spuriously by the 

plaintiff simply to defeat a venue favorable to the defendant. The 

evil which 5 25-2-116, MCA, seeks to address simply is not present 

in these sorts of cases. 

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 § 27-l-501(2), MCA, 

wrongful death and survivorship actions must be combined in one 

legal action, we rejected the same argument that the Clinic and 

Lands present here: 

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 

11 
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 2 proper venue precludes a 

successful change of venue motion. Petersen, 742 P.2d at 

484. 

Gabriel, 870 P.2d at 1353. 

Given that the nature of the evil sought to be addressed by § 

25-2-116, MCA, is not present here; given that § 27-I-501(2), MCA, 

mandates that the plaintiff file a wrongful death and survivorship 

action in one combined legal action; and given our decision in 

Gabriel, that a proper venue for such a combined action can be 

determined on the basis of either the survivorship action or the 

wrongful death action if a proper venue for each cause of action is 

different, we conclude that the trial court did not err in refusing 

to apply 5 25-2-116, MCA, in the instant case. 

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 County because the survivorship action arose there does 

not render Yellowstone County an improper place for trial for both. 

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(l). 

Section 25-2-115, MCA 

We hold that the District Court properly denied appellants' 

motions for change of venue. Affirmed. 

12 
Justices 

13 
Justice W. William 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. 

Section 25-2-116, MCA, clearly provides that when an action 

involves two or more claims, and when the law designates more than 

one place 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 . . . I' Since defendants would be 

entitled to change of venue on the survivorship claim standing 

alone, they are entitled to a change of venue on both claims. The 

Court however, relying on the Evidence Commission's recommendation, 

reasons that § 25-2-116, MCA, only has application when a plaintiff 

has added a spurious claim in order to control venue. Since the 

law requires that a wrongful death claim and a survivorship claim 

be combined in one suit, the Court concludes that "[tlhe evil which 

14 
§ 25-2-116, MCA, seeks to address simply is not present in these 

sorts of cases." 

The intent behind § 25-2-116, MCA, may have been aimed at the 

"evil" of spurious claims. However, that intent was not 

incorporated into the statute. The plain wording of the statute 

clearly applies to any suit involving "two or more claims." It 

does not say "two or more claims, one of which is spurious." If 

the intent of the legislature can be determined from the plain 

meaning of the words used, the Court may not go further and apply 

other means of construction. Wunderlich v. Lumbermens Mut. Cas. 

co. (1995), 270 Mont. 404, 410, 892 P.2d 563, 567. Given that the 

wording of the statute is clear and not subject to differing 

interpretations, there is no call to resort to legislative history. 

In my view, the statute clearly requires a change of venue to 

Rosebud County. That interpretation, however, was rejected in the 

Gabriel decision. 

15