### No. 96-334 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1996
JEANWENTZ,

Plaintiff andRespondent,

VS. 

### MONTANAPOWER

COMPANY,NORTHAMERICAN ENERGYSERVICES,ROSEBUD COUNTY,COLSTRIP MEDICALCLINIC, WILLIAMC.ANDERSON,M.D., CAROLLANDS,P.A. ANDJOHNDOEIthrough JOHNDOEIV,

Defendants andAppellants.

APPEALFROM: District Court of theThirteenth Judicial District,

Inandfor the County of Yellowstone, TheHonorable Robert W.Holmstrom, Judgepresiding. COUNSELOFRECORD:

ForAppellant: ThomasM. 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 (RosebudCounty) For Respondent: L. Randall Bishop, Jarussi & Bishop, Billings, Montana

Filed: Submitted onBriefs: November 14, 1996 Decided: November 26, 1996Justice 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. Weaffirm.

FACTUAL ANDPROCEDURALBACKGROUND 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 aheart attack while on the job performing awelding 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 hewas then transferred from the Clinic back into the Rosebud County EMSambulance 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 hewas 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
waspronounced 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) andCarol Lands, P.A. (Lands) reduced Gerald's chances for survival 2and caused his death onApril 15, 1992.

Jean's complaint, filed in one count, claims damages of the type recoverable in asurvivorship cause of action under S,27-I501, MCA, and in awrongful 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 EMSambulance that transported Gerald to, from andthen back to the Clinic. Those defendants filed motions requesting that venue be changed to Rosebud County arguing that Yellowstone County was not aproper place for the trial of Jean's suit. The District Court ruled that Jean had filed her complaint in aproper county and denied defendants' motions. This appeal followed. DISCUSSION While each of the appellants and Jean frame the questions to beresolved in this appeal somewhat differently, the basic issue is whether the District Court erred in denying the requested change of
venue onthe facts of this case. Whether acounty is aproper place for trial is aquestion 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), 258Mont. 493, 491, 853 P.2d 1242, 1245). Thus, our review of the trial court's grant or denial of amotion for change of venue is plenary; wesimply determine whether the court's ruling waslegally correct. Peqasus, 889 P.2d at 1199 (citing Carter v. Nye (1994), 266Mont. 226, 228, 879 P.2d 729, 730). Seealso Gabriel v. School
3Dist. No. 4, Libby (1994), 264Mont. 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 onour 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 and25-2-126, MCA. Section 25- 2-122, MCA, provides in pertinent part:

Torts. (1) Except as provided in subsection (2), the proper place of trial for atort 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) Theproper place of trial for anaction against acounty is that county unless such action is brought by acounty, in which case anycounty not aparty thereto is also aproper place of trial. (3) Theproper place of trial for anaction against apolitical 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 wediscuss our decision in Gabriel. In Gabriel, decedent was injured andhis survivorship action arose in Lincoln County whenhe 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 4Plaintiff 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. Weagreed. Werelied onCarroll v. W.R. Grace &Co. (1992), 252Mont. 485, 830 P.2d 1253, in concluding that since death is the critical and final element in the accrual of a wrongful death action, awrongful death claim arises for venue purposes where the death occurs. Gabriel, 870 P.2d at 1352. Moreover, wedetermined 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 aproper 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 525-2-115, 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 aschool 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
5the instant case is a"political subdivision" (wewill 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 525-2-126(2), MCA,which provides specifically that in anaction brought against acounty--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, 525-2-122, 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," 525-Z 126(3), MCA,byits language, specifically provided for venue where the claim "arose." However, since none of the defendants are "political subdivisions" then the County is entitled to besued in Rosebud County under 525-2-126(2), MICA,and all defendants are entitled to besued 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 atort is "committed" (asopposed 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
6legal issue of where that tort is "committed" for purposes of

analyzing acase in which the general tort venue statute applies as opposed to avenue statute that speaks in terms of where the claim "arises." Weare not persuaded by Dr. Anderson's argument. In fact, we rejected asimilar argument in Gabriel ,wherein westated:

Nor is the School District's reliance on Howard v. Dooner Laboratories, Inc. (1984), 211Mont. 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 asituation 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 525-2-126(3), MCA, and 525-2-122(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 anddefining element of this claim--death--occurs. Gabriel, 870 P.2d at 1352. Thelocation 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.
7Likewise, wefind nomerit in Dr. Anderson's and the County's

argument that §25-Z-126(2), MCA, rather than 525-2-126(3), MCA, applies to Rosebud county. Without question, these two subparagraphs of the statute are contradictory. However, we addressed this problem over adecade agoand 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 andthe State in Lincoln County alleging wrongful arrest and invasion of privacy in Lincoln County onaFlathead 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 bynongovernmental 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. Wenoted, 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 orwhere the county being sued is located. Citing Hutchinson
v. Moran (19831, 207 Mont. 330, 673 P.2d 818, westated: [T]he authority of aprivate entity to sue acounty now exists solely byvirtue 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 newvenue statute, section 2-g-312(2), MCA, supersedes the venue provision contained in section 25-2- 106, MCA, and exclusively determines the venue of suchactions.

Spencer, 687 P.2d at 1391-92. In 1985, the CodeCommissioner renumbered andcombined 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, 525-2-106, 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 beunder § 2-g-101(5), MCA--i.e., political subdivisions--such aconclusion 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 525-2-126, MCA)wasenacted 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 apolitical subdivision and is subject to the venue provisions of §25-2-126(3), MCA, in the same
manner that the school district wasin Gabriel. Rosebud County may besued 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
9be 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, 525- 2-116, MCA, requires that the court ascertain whether plaintiff selected aproper venue as to both her claims, and if the county selected is proper as to one, but not both, any defendant is entitled to achange 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 asa proper place of trial, aparty entitled to achange of place of trial on any claim is entitled to achange of place of trial onthe 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 aproper 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 asto the survivorship claim, shewaived 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 aswell. We disagree. Section 25-2-116, MCA, was enacted in 1985. 1985 Mont. Laws

10432. The Evidence Commission's recommendation for the adoption of

this section of the Montana Code states that it is acodification 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 novalidity, but are triable in the forum the plaintiff chooses rather than at the normal situs which would bethe 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 avenue favorable to the defendant. The evil which 525-2-116, 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 11arose -- advance its cause. It is well-established that

venue maybeappropriate in more than oneplace andthat, in such an event, filing in 2proper venue precludes a successful change of venue motion. Petersen, 742P.2d at 484. Gabriel, 870 P.2d at 1353. Given that the nature of the evil sought to beaddressed by § 25-2-116, MCA, is not present here; given that §27-I-501(2), MCA, mandates that the plaintiff file awrongful death and survivorship action in one combined legal action; and given our decision in Gabriel, that aproper venue for such a combined action can be determined on the basis of either the survivorship action or the wrongful death action if aproper venue for each cause of action is different, weconclude that the trial court did not err in refusing to apply 525-2-116, MCA, in the instant case. Venue for Jean's wrongful death action is properly in Yellowstone County because that is where Gerald died andwhere 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 animproper place for trial for both.

If.

.more than one county [is designated] as a proper place of trial for any action, anaction brought in any such county is brought in aproper county and no motion maybegranted to change the place of trial upon the ground that the action is not brought in aproper county under 25-2-201(l). Section 25-2-115, MCA Wehold that the District Court properly denied appellants' motions for change of venue. Affirmed.

12Justices

13

### Justice W.William Leaphart, specially concurring.

I concur in the result reached bythe Court because I agree that our decision in Gabriel v. School Dist. No. 4, Libby (1994), 264Mont. 177, 870P.2d 1351, is controlling. However, having paid deference to stare decisis, Imust note that Ifail to follow the logic of Gabriel. Iagreewith Justice Weber's dissent inGabriel in which hereasons that if youhavetwocauses of action, onein which venueis appropriate incounty Aandthe other inwhich venue is appropriate incounties Aor B,the logical venue is the county which is appropriate for both causes of action, i.e., county A. SeeGabriel, 870 P.2d at 1354 (Weber, J. dissenting). In the present case, Rosebud County would beproper venue for both the wrongful death action andthesurvivorship while Yellowstone County is appropriate only for the wrongful death action. Section 25-2-116, MCA,clearly provides that whenanaction involves twoormoreclaims, andwhenthe lawdesignates morethan
oneplace asaproper place of trial, "aparty entitled toachange of place of trial onanyclaim is entitled to achangeof place of trial onthe entire action

. . . I' Since defendants would be entitled to change of venue on the survivorship claim standing alone, they are entitled to achangeof venueonboth claims. The Court however, relying ontheEvidence Commission's recommendation,
reasons that §25-2-116, MCA,only hasapplication whenaplaintiff hasaddedaspurious claim in order to control venue. Since the law requires that awrongful death claim andasurvivorship claim becombined inonesuit, theCourt concludes that "[tlhe evil which
14

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

sorts of cases." Theintent behind §25-2-116, MCA,mayhavebeenaimedat the "evil" of spurious claims. However, that intent was not incorporated into the statute. Theplain wording of the statute clearly applies to any suit involving "two or more claims." It does not say "two or moreclaims, oneof which is spurious." If the intent of the legislature can bedetermined from the plain meaning of the words used, the Court maynot gofurther andapply other meansof construction. Wunderlich v. Lumbermens Mut. Cas.
co. (1995), 270Mont. 404, 410, 892P.2d563, 567. Given that the wording of the statute is clear and not subject to differing interpretations, there is nocall toresort to legislative history. In myview, the statute clearly requires achange of venue to RosebudCounty. That interpretation, however, wasrejected inthe Gabriel decision.

15