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 1 0 1993 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

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, 

Professor Ruey-Lin Lin (Professor Lin). 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 

first day of a sociology class taught by Professor Lin, a professor 

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 slandered him 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 clause which 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 Eastern Montana 

College and the Montana university System. Stansbury received the 

settlement provided in the agreement. 

Following the execution of the settlement agreement, Stansbury 
filed a slander complaint in the District Court against Professor 

Lin as an individual defendant. The complaint was accompanied by 

and incorporated an affidavit made by Stansbury. stansbury alleged 

that Professor s in's conduct in slandering him was willful and 

malicious. He sought actual and punitive damages. 

Professor in moved to dismiss Stansbury's complaint, arguing 

that since Stansbury had settled the slander action with Professor 

Lint s employer, the State of Montana, Stansbury was statutorily 

barred by 5 2-9-305, MCA, from suing him 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 signed by 

the representatives of 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 

authority provided in 3 2-9-305, MCA, that Professor Lin was 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 the parties had relied on facts not 

contained in the pleadings and, therefore, converted the motion to 

dismiss into a motion for summary judgment and set a date for an 

evidentiary hearing. 

At the evidentiary hearing, neither party presented evidence 

and both waived any further presentation of evidence. The District 

Court then proceeded to hear oral argument on the summary judgment 

motion. Stansbury contended during oral argument that Professor 
Lin 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 

court that the State had 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. 

Professor Lin presented 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 

settf ing 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 attorney also stated in his 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 

within the course and scope of the employeet s employment. 

Accordingly, the recovery, by virtue of the settlement 

against the governmental entity, to wit: 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 of material 

fact exist and the moving party is entitled to judgment as a matter 

of law. Rule 56(c), M.R.Civ.P. This Court's standard of review is 

the same as the trial court's, and we will 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 governmental entity as defined 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 indemnification of employee^.'^ Subsection (5) 

of that statute provides: 

Recovery aqainst a qovernmental entitv under the provisions of warts 1 throuqh 3 of this chapter constitutes a 

comwlete bar to any action or recovery of damases by the 

claimant, by reason of the same subject matter, aqainst 

the employee whose neslisence or wronqful act, error, or 

omission or other actionable conduct qave rise to the 

claim. 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 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 exclusion provided in (b) through (d) of 

subsection (6). [Emphasis added.] 

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 in drafting. 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 subject matter 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 settlement between Stansbury and Eastern 

Montana College provided that It[n]othing herein precludes Fred 

Stansbury from pursing [sic] legal recourse against Professor RueyLin 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 

Professor Lin. It does not cancel the statutory bar to this action 

provided by 5 2-9-305(5), MCA. When he entered the settlement with 

Eastern Montana College, Stansbury forfeited his right to sue 

Professor Lin individually for the same acts. He may not have 

chosen the best timing sequence for his 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 Lints immunity. 

The District Court considered, and in their briefs to this 

6 
Court the parties have argued, whether Professor Linls actions were 

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 Lints actions were within the course 

and scope of his employment. The second sentence of subsection (5) 

applies "[iln any such action against a governmental 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. 

Af f inned. 

We concur: 

hief Justice 

not err in entering summary 

Justices 
Justice 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 

classroom by Lin. He further alleged that after his departure from 

the room, Lin embarked on a 30 minute tirade during which he 

intentionally and maliciously defamed Stansbury by referring to him 

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. 

Stansburyrs counsel made it plain to EMC's representative with whom 

he negotiated that he intended to continue the claim against Lin as 

an individual. Therefore, the settlement agreement was amended to 

provide that: 
Nothing herein precludes Fred Stansbury from pursuing 

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 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 actions were intentional and malicious. 

An appearance was filed on behalf of EMC by Norman C. 

Peterson, an attorney employed by the Agency 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 the majority 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 of 
his employment because this Court has since held, in Magz~ire v. State of 

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 a matter 

of law and the employer cannot be held vicariously liable for the 

consequences of such an act. In this case, the defamatory conduct 

that Lin is accused of was an intentional act, and according to the 

majority opinion in Maguire, was outside the course of his 

employment as a matter of law. That conclusion cannot be 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. The majority Is decision is based upon the first sentence of 

§ 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 is the purpose of this section to provide for the 

immunization, defense, and indemnification of public 

officers and employees civilly sued for their actions 
taken within the course and scope of their employment. 

[Emphasis added.] 

Furthermore, the second sentence of subsection (5) explains 

the first sentence by 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 . . . . [Emphasis added.] 

The construction of the majority ignores this provision of the 

statute and ignores the express purpose of the statute which is to 

immunize employees for only those acts which are in the course and 

scope of their employment. 

The majority opinion concludes that the second sentence is not 

applicable because this action "is not now and never has been an 

action against a governmental entity." The majority is incorrect. 

This action started out as an action against EMC. The complaint 

was amended to dismiss EMC only after a settlement was 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 a model 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 in which there is an 

acknowledgment or judicial determination that the employee acted 

within the course and scope of his or her employment. Therefore, 

the more particular provision found in the second sentence controls 

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 cannot be changed by an affidavit of 

one of the State's agents when it serves the State's interest to do 

so. Section 2-9-305, MCA, when construed so as to accomplish the 

intent of the Legislature and give effect to all of its provisions, 

does not provide immunity to Lin under the circumstances in this 

case because as a matter of law he was not acting within the course 

and scope of his employment. 
For these reasons, I dissent from the opinion of the majority 

and would reverse the judgment of the District Court. 

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

the foregoing dissent.