### No. 91-486 IN THE SUPREME COURT OF THE STATE OF MONTANA

FRED STANSBURY, Plaintiff and Appellant,

-vsPROFESSOR RUEY-LIN LIN, Defendant and Respondent 

### MAR

### 101993

APPEAL FROM: District Court of theThirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell K. 

### Fillner,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Craig W. 

### Holt, Attorney at Law, Billings,Montana For Respondent: Norman C. 

### Peterson,Agency Legal Services Bureau, Helena, Montana Donna Davis; Matovich, Addy & 

### Keller, Billings Montana Bill Gianoulias, Tort Claims Division, Helena, Montana LeRoy H. Schramm, Chief Legal Counsel, Office of the Commissioner of Higher Education, Helena Montana

Filed: Submitted on Briefs: March 26, 1992 

### Decided: March 10, 1993

### Justice 

### Karla M. Gray 

### delivered the Opinion of the Court.

Fred 

### Stansbury (Stansbury) appeals from an order of the 

### District Court of the ~hirteenth Judicial District, Yellowstone County, granting summary judgment in favor of the respondent, ProfessorRuey-Lin Lin (ProfessorLin). We affirm. The sole issue on appeal is whether the 

### District Court erred in granting summary judgment in favor of Professor Lin. On March 26, 

### 1990, Stansbury appeared as a student for the firstday of a sociologyclass

### taughtby 

### ProfessorLin,aprofessor at 

### Eastern Montana College in 

### Billings. Stansbury alleges 

### that Professor Lin demanded that he leave the classroom and that, upon his departure from the classroom,Professor Lin slanderedhim in a 

### thirty-minute tirade to the remaining students in 

### the class. On 

### January 23, 

### 1991, Stansbury's attorney, on behalf 

### of Stansbury, signed a settlement agreement 

### in which Stansbury released Eastern Montana College and its officers, employees and 

### agents from any liability for any alleged slander of 

### Stansbury by 

### Professor Lin. 

### The agreement contained 

### a clausewhich stated: To resolve this case, 

### the parties agree as 

### follows:

1.. b. 

### Nothing herein precludes Fred Stansbury from pursing [sic] legal recourse against Professor Ruey-Lin Lin for 

### actions of his outside the 

### course and scope of employment authority of Eastern Montana College or the Montana University System. The agreement

### was also signed

### by representatives of EasternMontana College 

### and theMontana university System. Stansbury received the settlement provided in the agreement. Followingthe executionof the 

### settlementagreement,Stansbury

### filed a slander complaint in the District Court against Professor Lin as an individual defendant. The complaint was accompanied by and incorporated an affidavitmade by Stansbury. stansburyalleged that Professor 

### s in's conduct in slandering him was 

### willful and 

### malicious. He 

### sought actual and punitive damages. Professor

### inmoved to dismiss Stansbury's complaint,arguing that since Stansburyhad settled the slander action with Professor Lint s employer, the State of Montana, Stansbury was statutorily barred by 5 2-9-305,

### MCA, from suinghim as an individual. He further argued that under § 2-9-305, 

### MCA, he 

### was individually immune from suit. In 

### support of 

### his motion to dismiss, Professor Lin 

### submitted to the District Court the settlement agreement signedby 

### the representativesof the State

### and Stansbury's attorney. He also submitted the affidavit of the chief legal counsel to 

### the Commissioner of Higher Education, which acknowledged under the authorityprovided in 3 2-9-305,MCA, 

### that ProfessorLinwas acting within the scope and duty of his employment at the time of the alleged 

### slander. 

### The motion to dismiss was briefed by both 

### parties. The District Court determined that theparties had relied on factsnot contained in thepleadings and, therefore, converted 

### themotion 

### to dismiss into a motion for summary judgment and 

### set a 

### date for 

### an evidentiaryhearing. At the evidentiary hearing, neither party presented evidence andboth

### waived 

### any 

### furtherpresentation 

### of evidence. The

### District Court thenproceeded to

### hear oral argument on the summary judgment motion. Stansbury contended during oral argument that ProfessorLin was acting outside the course and scope of his employment at the time of the alleged slander and that the State previously had acknowledged that fact. Because there was no evidence before the courtthat the Statehad acknowledged that Professor Lin was acting outside the course and scope of his employment at the time of the alleged slander, the court gave 

### the 

### parties additional 

### time 

### in which to submit further evidence. ProfessorLinpresented nothing further. Stansbury submitted

an additional affidavit of his own, Stansbury also submitted 

### an affidavit in which his attorney stated that during the course of settfing with Eastern Montana College, he had spoken with JoAnne Sherwood from the office of the Commissioner of Higher Education and had tlexpressed a distinct concern about the continuation of this action against Professor Ruey-Lin Lin 

### as an individual." Stansburyts attorneyalso stated inhis affidavit that the language of the original settlement agreement had been altered to allow Stansbury to proceed against Professor Lin individually. Thereafter, the District Court granted summary judgment in favor of Professor Lin, stating: 

### It is clear under 5 2-9-305, MCA, that 

### an employee whose conduct gave 

### rise to the suit is immune from liability 

### by 

### reasons 

### of the same subject matter 

### if the governmental 

### entity acknowledges that his conduct was 

### withinthecourseand scopeof 

### theemployeet s employment. Accordingly, the recovery, by virtue of the settlement against the governmental entity, towit: Eastern Montana College, constitutes a complete bar to this action. Counsel for the plaintiff has not produced any evidence to constitute a bar to the application of the express terms of the statute. 

### This appeal followed.

### Did the District Court err in granting summary judgment in favor of Professor Lin? Summary judgment is

### proper when no genuine issues ofmaterial fact exist and themoving party is entitled to judgmentas amatter of law. Rule 56(c),

### M.R.Civ.P. This Court's standard of 

### review is the same as the 

### trial court's, and 

### wewill 

### uphold 

### a correct result 

### regardless of the reasons given by the lower court. Shimsky v. Valley Credit Union (1984), 

### 208 Mont. 186, 189-90, 676 P.2d 

### 1308,

Eastern Montana College, as 

### a college run by 

### the State of 

### Montana, is a governmentalentityasdefined in Title 2,

### Chapter 9, 

### MCA. Section 2-9-101 (3) 

### and (7),MCA. 

### Section 2-9-305, 

### MCA, is entitled "Governmental entity to be 

### joined as defendant

# -- immunization,defense,and indemnificationof employee^.'^ 

### Subsection (5) 

### of that statuteprovides: Recovery aqainst a qovernmental entitv under theprovisions of warts 1

### throuqh 3 

### of this chapter constitutesa comwlete bar to any action or recovery of damasesby the claimant,by reason of the same subjectmatter, aqainst the 

### employeewhose neslisence orwronqful act,error,or 

### omission or other actionable conduct qave rise to the claim. Inany suchaction againstagovernmental entity, the employee whose conduct gave rise to the suit is immune from liability by reasons of the same subject matter if the governmental entity acknowledges or is bound by a judicial determination that the conduct upon which the claim is brought arises out of the course and scope of 

### the employee's 

### employment, unless 

### the claim 

### constitutes an exclusionprovided in (b) 

### through (d) 

### of subsection (6). 

### [Emphasisadded.] The validity of this statute has not been challenged as 

### part of this appeal. In interpreting statutes, we must give language its plain meaning. Keller 

### v. Smith (1976), 170 

### Mont. 399, 

### 404-05, 553 P.2d

### 1002, 1006. Section 2-9-305, MCA, as a whole is not a model of clarity indrafting. However,the first sentence of 5 

### 2-9-305(5), MCA, clearly prohibits any action or recovery against an employee of the State based on the same subject matter for which recovery has already been obtained from a governmental entity. Stansbury has already obtained recovery, in the form of a settlement from Eastern Montana College, for the same subjectmatter out of which he now brings suit against Professor Lin. We conclude that under the first sentence of 5 

### 2-9-305(5), MCA, Stansbury's settlement with Eastern Montana College is a complete bar to this lawsuit. As stated above,the settlementbetween Stansbury and Eastern Montana College provided that It[n]othing herein precludes Fred Stansbury frompursing [sic]legal recourse against ProfessorRueyLin Lin for actions of his outside the course and scope of employment authority of Eastern Montana College or the Montana University System." Stansbury argues that this provision in the settlement agreement affirms his continuing right to sue Professor Lin personally. We disagree. This provision only precludes the settlement aqreement from cutting off Stansbury's right to sue ProfessorLin. It doesnot cancel the statutory bar to this action provided by 

### 5 2-9-305(5), MCA. When he entered the settlementwith Eastern Montana College, Stansbury forfeited his right to sue Professor Lin individually for the same acts. He may not have chosen thebest timing sequence forhis settlement and lawsuit,but that has no bearing on the right of the State to make a settlement and it has no bearing on Professor Lintsimmunity. The District Court considered, and in their briefs to this 6

### Court thepartieshave argued,whether ProfessorLinls actionswere within the course and scope of his employment,as discussed in the second sentence of § 2-9-305(5), 

### MCA. However,we conclude it is immaterial whether Professor Lintsactions were within the course and scopeofhis employment. The second sentenceof subsection (5) 

### applies "[iln any suchaction againstagovernmental entity." This action,which was filed only after Stansbury settled with Eastern Montana College, is not now and never has been an action against a governmental entity. We conclude that the second sentence of 5 2- 9-305(5), 

### MCA, does not apply here. Because we have concluded that the first sentence of 5 2-9- 305(5), 

### MCA, is, on its face, a complete bar to this action, we hold that the District Court did judgment for Professor Lin. Affinned.

We concur:

hief Justice not err in entering summary

JusticesJustice Terry N. Trieweiler dissenting. Fred Stansbury has been sandbagged twice. Once by the attorneys for the University System, and a second time by the Supreme Court. Therefore, I dissent. On January 3, 1991, Stansbury filed a complaint against Ruey-Lin Lin and Eastern Montana College (EMC). He alleged, among other things, that on March 26, 1990, when he entered Lin's sociology class at EMC as a student, he was ordered out of the classroomby Lin. He further alleged that afterhis departure from the room, Lin embarked on a 30 minute tirade during which he intentionallyandmaliciously defamed Stansburyby referringtohim

as "lazy8t and "stupid," and otherwise impugned his character and learning ability. In the affidavit in support of his amended complaint, Stansbury also pointed out that Lin told the rest of the students in the class that Stansbury was ignorant, obnoxious, incapable of learning, and no good as a person or a student. Shortly after the original complaint was filed, Stansbury negotiated a settlement with EMC. However, according to the affidavit of Stansbury's attorney, the original settlement agreement proposed by counsel for EMC contained language that precluded further pursuit of the claim against Lin individually. Stansburyrscounselmade it plain toEMC's representative withwhom he negotiated that he intendedto continuethe claim against Lin as

an individual. Therefore, the settlement agreementwas amended to provide that:Nothing herein precludes Fred Stansbury from pursuing legal recourse against ProfessorRuey-Lin Lin foractions of his outside the course and scope of employment authority of Eastern Montana College or the Montana University System. The amended settlement agreement was signed on January 23, 1991, and on February 20, 1991, an amended complaint was filed naming Lin as the only defendant and repeating Stansbury's allegation that Lin's actionswere intentional and malicious. An appearance was filed on behalf of EMC by Norman C. Peterson, an attorney employedby theAgency Legal Services Bureau of the Department of Justice of the State of Montana. On March 27, 1991, Peterson filed a motion to dismiss the complaint, and in support of that motion, filed the affidavit of Leroy Schramm. Schramm is the Chief Legal Counsel to the Commissioner on Higher Education, and in his affidavit stated that the actions of Lin which were complained of by Stansbury were committed within the course and scope of Lin's employment as a professor at EMC. The District Court granted the motion to dismiss because it concluded that pursuant to 5 2-9-305, MCA, a State employee is immune from liability for conduct which the government alleges was within the course and scope of that person's employment. 

### The District Court did not hold, and Stansbury has not contended on appeal, that Lin was immune from liability based 

### on the strained interpretation that themajority attaches to 5 2-9-305, MCA. Of course, the District Court's judgment of dismissal could not be affirmed on the basis that Lin acted within the course ofhis employment because this Court has since held, in

### Magz~ire v. 

### Stateof 

### Montana (Mont. 1992), 835 P.2d 755, 758-60, 49 St. Rep. 688,689-91, that where intentional torts are not committed for the benefit of the employer, they are outside the course of employment as amatter of law and the employer cannotbe held vicariously liable for the consequencesof such an act. Inthis case,thedefamatory conduct that Lin isaccused ofwas an intentional act,and according to the majority opinion in 

### Maguire, was outside the course of his employmentas amatter of law. That conclusion cannotbe varied by the self-serving affidavit of one of the State's own agents. The State is judicially estopped from asserting inconsistent arguments regarding the effect of an intentional act--depending on which position best serves the State's interest in a given case. Therefore, ignoring all rules of statutory construction, the majority has simply concluded that based on 5 2-9-305(5), MCA, recovery cannot be had against an employee of the State based on the same subject matter for which recovery was had against the State. ThemajorityIs decision isbased upon the first sentenceof § 2-9-305(5), MCA. However, that statute contains a number of provisions, and where a statute contains "several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." Section 1-2-101, MCA. For example, 5 2-9-305(1), MCA, provides that: It isthepurpose of this sectiontoprovide forthe immunization, defense, and indemnification of public officers and employees civilly sued for their actionstaken within the course and scope of their employment. [Emphasis added.] Furthermore, the second sentence of subsection (5) explains the first sentenceby providing that: In any such action against a governmental entity, the employee whose conduct gave rise to the suit is immune from liability by reasons of the same subject matter 

## if the aovernmental entitv acknowledqes or is bound by a judicial determination that the conduct upon which the claim is brouaht arises out of the course and scope of the employee's employment 

# . . . . [Emphasisadded.] Theconstruction of themajority ignoresthisprovision of the statuteand ignores the express purpose of the statutewhich is to immunize employees for only those actswhich are in the course and scope of their employment. Themajority opinion concludesthat the second sentence is not applicable because this action "is not now and never has been an action against a governmental entity." Themajority is incorrect. This action started out as an action against EMC. The complaint

was amended todismissEMC only after a settlementwas entered into with that defendant. The majority opinion ignores other rules of construction. Section 1-2-102, MCA, provides that "in the construction of a statute, the intention of the legislature is to be pursued if possible." Section 2-9-305, MCA, makes very clear that it is the Legislature's intent that only those employees who are acting in the course and scope of their employment are immune from personal liability. However, the majority is unimpressed.section 1-2-102,MCA, further provides that "when a general and particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control a general one that is inconsistent with it." The majority makes passing reference to the fact that g 2-9-305(5)

## ,MCA, is not amodel of clarity. However, the reason it is unclear is that the general provision contained in the first sentence and the particular provision contained in the second sentence are inconsistent. The first sentence provides for general immunity for an employee when recovery has been had against the governmental entity by whom he or she is employed. However, the second sentence limits that immunity to cases inwhich there is an acknowledgment or judicial determination that the employee acted within the course and scope of his or her employment. Therefore, themore particular provision found inthe second sentencecontrols

over the general statement of intent found in the first sentence. The majority has ignored this rule of construction. In summary, this Court has previously held that intentional torts are outside the course and scope of State employees' employment. That rule of law cannotbe changedby an affidavit of

one of the State's agentswhen it serves the State's interest to do

so. Section 2-9-305,MCA, when construed so as to accomplish the intentof the Legislature and give effect to all of its provisions, does not provide immunity to Lin under the circumstances in this

casebecause as amatter of lawhewas not actingwithin the course and scope of his employment.For these reasons, I dissent from the opinion of themajority and would reverse the judgment of the District Court.

Justices John C. Harrison and William E. Hunt, Sr., concur in the foregoing dissent.