No. 86-218 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

MAURICE DEAN PRIEST, 

Plaintiff, Respondent and 

Cross-Appellant, 

-vsLAWRENCE TAYLOR, JR., PEARL R. 

TAYLOR, and LARRY KEVIN TAYLOR, JR., 

a minor, 

Defendants, Appellants, and 

Cross-Respondents, 

and 

LINDA PRIEST, 

Plaintiff and Appellant, 

-vsLAWRENCE TAYLOR, JR., PEARL R. TAYLOR, 

and LARRY KEVIN TAYLOR, JR., a minor, 

Defendants and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Landoe, Brown, Planalp, Kommers & Johnstone; Gene 

I. Brown, Bozeman, Montana 

For Respondent: 

Robert L. Stephens, Jr., Billings, Montana 

JUL 13 1987 

Filed: 

Submitted on Briefs: May 18, 1987 

Decided: July 13, 1987 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Defendants Lawrence Taylor, Jr., Pearl Taylor and Larry 

Kevin Taylor, Jr., (Taylors) appeal a Yellowstone County 

District Court order granting a new trial to the plaintiff 

Maurice Priest in this personal injury action. Mr. Priest 

and his wife Linda cross appeal from a district court order 

denying their motion to file an amended complaint. Maurice 

Priest also cross appeals on one issue relating to voir dire. 

The issues are, 

1) whether the court properly granted a new trial to 

plaintiff because; 

a) the court failed to specifically instruct the jury 

on defendants' burden to show what part of plaintiff's 

injuries were attributable to his preexisting condition; 

and/or, 

b) the court failed to instruct the jury on the 

aggravation of plaintiff's preexisting mental condition; 

2) whether the court erred in denying the Priests' 

motion to amend the complaint to include an action for loss 

of consortium; 

3) whether the court improperly refused to allow 

plaintiff to use certain exhibits during voir dire. We 

affirm the grant of a new trial and the ruling in regard to 

voir dire. We reverse the order denying the motion to amend 

the complaint. 

On August 28, 1982, plaintiff was involved in an 

automobile accident in Billings, Montana. A car driven by 

Larry Kevin Taylor, Jr., a minor, struck the plaintiff's car 

from the rear. Prior to the accident, plaintiff had a 
history of rather severe mental illness and of injuries to 

his right shoulder and/or back. 

In May 1984, plaintiff filed a complaint in Yellowstone 

County District Court alleging that Larry Kevin Taylor, Jr., 

had negligently and recklessly caused the accident. The 

complaint also sought to impute Larry's alleged negligence to 

his parents, Lawrence and Pearl Taylor, under § 61-5-108 (2), 

MCA. On August 28, 1985, plaintiff and his wife Linda moved 

(1) to amend the complaint by adding Linda Priest as a party 

plaintiff to assert her claim for loss of consortium, or 

(2) in the alternative, that the amended complaint be 

allowed to proceed as an independent, separate action on 

behalf of Linda. In October 1985, the court denied the 

motion to amend reasoning that 1) Rule 15, M.R.Civ.P., allows 

a party to amend his pleadings under certain circumstances; 

2) this motion to amend sought to add an additional person as 

a party to assert a new claim; 3) the wife was not a party as 

contemplated by Rule 15; and 4) therefore, the motion was not 

truly a motion to amend under Rule 15. 

This action went to trial in November 1985. During voir 

dire, plaintiff's counsel attempted to use five signs upon 

which were printed legal words or phrases and explanatory 

comments. The phrases were "proximate cause," "burden of 

proof," "preexisting condition" and "damages." Plaintiff 

hoped to explore the jurors' opinions, if any, on these 

concepts. The court disallowed the use of the signs. 

The court and the parties' counsel struggled for some 

time attempting to formulate proper jury instructions on two 

issues; i.e., (1) the aggravation of preexisting conditions 

and (2) the burden of proof as to the aggravation of injury 

and as to the divisibility of injury. Ultimately, jury found 

for the plaintiff, awarding him $15,100. The plaintiff moved 

for a new trial and that motion was granted. The court ruled 
that it committed two errors in instructing the jury. One 

error was the failure to instruct the jury that once the 

plaintiff had satisfactorily proved that the accident 

aggravated his preexisting condition, the burden of proof 

shifted to the defendants to show what portion of plaintiff's 

damages was attributable to the accident and what portion was 

attributable to the preexisting condition. The second error 

related to instructing the jury on the aggravation of 

plaintiff's preexisting mental condition. Defendants appeal 

the grant of a new trial. 

The standard of review is clear. 

Whether to grant or deny a new trial is 

within the sound discretion of the trial 

court, (citation omitted), and will not 

be overturned absent a showing of 

manifest abuse of that discretion. 

(Citation omitted.) 

Walter v. Evans Products Co. (Mont. 19831, 672 P.2d 613, 616, 

40 St.Rep. 1844, 1847. 

We first address the court's ruling as to the burden of 

proof on the apportionment of damages. The court gave two 

general instructions on the burden of proof and apportioning 

damages. Instruction number 2 defined "preponderance of the 

evidence" and instructed that a party asserting the 

affirmative of an issue has the burden of proving that issue 

by a preponderance of the evidence. Instruction number 22 

stated in pertinent part, 

If you find that the plaintiff Is 

pre-existing physical condition was 

aggravated by the accident, then it is 

your duty to try to apportion the harm 

sustained by the plaintiff between his 

pre-existing conditions and the harm 

contributed to or aggravated by the 

accident, if any. 
If you find that such harm is divisible, 

you may award only such damages as you 

may attribute to the accident. But, if 

you find that the harm caused is not 

divisible then, in such event, you must 

award damages to compensate the plaintiff 

for all of the harm he has sustained. 

As stated, one of the grounds for the grant of a new trial 

was the failure to instruct the jury that once the plaintiff 

had satisfactorily proved the accident aggravated his 

preexisting condition, the burden of proof shifted to the 

defendant to prove the proper apportionment of damages.  he 

lower court apparently reasoned that such an instruction was 

required by Azure v. City of Billings (1979), 182 Mont. 234, 

596 P.2d 460. Azure involved two joint tortfeasors who were 

potentially jointly and severally liable for the entire 

judgment. In that situation, this Court stated: 

But where the harm caused is 

theoretically divisible, plaintiff's 

burden is to make a prima facie showing 

that the harm caused was at least a 

contributing proximate result of the 

defendant's act or omission. The burden 

then shifts to the defendant to either 

deny all liability or to prove that the 

harm caused can be divided and the 

damages therefore apportioned. 

Azure, 596 P.2d at 471. Under Azure, the burden does shift 

to the defendant to establish apportionment between the joint 

tortfeasors. However, this Court has not explicitly ruled 

that the burden of proof shifts to the defendant to establish 

apportionment of damages between a preexisting condition and 

subsequent injury. 

In Callihan v. Burlington Northern, Inc. (1982), 201 

Mont. 350, 654 P.2d 972, we were presented with a plaintiff 

with a preexisting condition, a defendant and the possibility 

of an apportionment of damages between the preexisting 
condition and the later accident. The defendant objected to 

that part of a jury instruction which advised the jury that, 

"But if you find that the evidence does not permit such an 

apportionment, then the defendant is liable for the entire 

disability." Callihan, 654 P.2d at 976. In upholding the 

propriety of that instruction, this Court cited the following 

reasoning from Azure, 

". . . to impose upon the plaintiff the 

sometimes impossible burden of proving 

which tortious act did which harm, would 

be an expression of a judicial policy 

that it is better that a plaintiff, 

injured through no fault of his own, 

should take nothing simply because he 

could not prove which tortious act caused 

which harm. We believe on the other 

hand, that where the tortious act is 

established, it is better that the 

tortfeasor should be subject to paying 

more than his theoretical share of the 

damages in a situation where the tortious 

conduct has contributed to the confused 

situation making it difficult to prove 

which tortious act did the harm." 

Callihan, 654 P.2d at 976, quoting Azure, 596 P.2d at 

470-471. This Court held that the Azure rationale applied in 

Callihan, so that the single defendant would be liable for 

the entire disability if the evidence did not permit an 

apportionment between the preexisting condition and the 

aggravating accident. 

The rationale behind the Azure rule (the burden of proof 

shifts to the defendant to establish apportionment after the 

plaintiff has met his initial burden) also applies in this 

situation. See 2 Minzer, Nates, Kimball, Axelrod and 

Goldstein, Damages -- In Tort Actions, S 15.34[1] [a], p. 15-111, 

(1986) ; ("The plaintiff is not charged with a burden of proof 

as to the actual apportionment of damages in an aggravation 

case. Any burden of that nature must be assumed by the 
defendant, since the defendant is the party standing to gain 

by litigating the apportionment issue.") In an appropriate 

case, the instruction proposed by the District Court could be 

proper to clarify that the plaintiff does not have the burden 

of proving what portion of his disability is attributable to 

the defendant in a preexisting condition case. 

However, as a caveat, we state that we prefer the 

following language over that proposed by the lower court. 

Once the plaintiff has satisfactorily met his burden (of 

proving that the accident aggravated his preexisting 

condition) and where the plaintiff's evidence shows no basis 

for apportionment, the defendant has the burden of going 

forward with evidence to establish apportionment. We do 

- not hold that such an instruction is required in this kind of 

case. We do hold that the lower court did not abuse its 

discretion in granting a new trial on the basis that such an 

instruction should have been given. 

We also briefly address the other reason given by the 

lower court for granting a new trial. Although expressed 

somewhat inexactly, the court found that it should have 

instructed the jury that plaintiff could recover damages if 

the accident aggravated his preexisting mental condition. 

The court did instruct that plaintiff could recover for any 

aggravation of his preexisting physical condition. 

Defendant argues that plaintiff disavowed the theory of 

aggravation of a mental condition and, therefore, was not 

entitled to an instruction on that point. It is true that 

plaintiff's counsel gave somewhat conflicting signals on this 

issue. At one point, he appeared to concede that he was not 

pursuing the theory of aggravation of preexisting mental 

condition. However, at other times, specifically in his 

answers to interrogatories and the pre-trial order, the 
plaintiff did advance this claim. For example, the plaintiff 

unequivocally stated in his answers to interrogatories: 

The accident which forms the basis of 

this action also served to aggravate 

plaintiff's pre-existing psychiatric 

condition . . . Prior to the accident, 

the plaintiff's mental condition had been 

stabilized with medication. Though the 

plaintiff continues to conscientiously 

use this and additional medication, since 

the time of the accident he has suffered 

from markedly increasing delusions of 

persecution, expansiveness, feelings of 

isolation and grandiosity, uncontrollable 

tremulous fits . . . 

Moreover, we note that the plaintiff proposed instructions 

which presented this theory, albeit in a vague and roundabout 

way. Priest's treating psychiatrist testified that he 

believed the accident caused an aggravation of Priest's 

mental condition. We emphasize the great deference we accord 

to a trial court's admission of error and grant of a new 

trial. Thus, we find that the trial court did not abuse its 

discretion in granting a new trial on this point. 

The second issue is whether the lower court erred in 

denying the Priests' motion to file an amended complaint. We 

note that appellant questions, rather disingenuously, whether 

this issue is properly before this Court. 

The Priests submitted a separate brief arguing the issue 

of the amended complaint. Taylors correctly point out that 

that brief was submitted under Linda Priest's name. They 

argue that because Linda was not a party below, she cannot 

file a separate appellant's brief and the issue debated in 

that brief is not on appeal. We disagree. The motion to 

amend the complaint was made by both Maurice and Linda 

Priest. Moreover, both of their names appear on the notice 

of appeal from the denial of their motion to amend. For the 
Taylors benefit, we repeat what we stated in our December 

1986 order, "Maurice Dean Priest is . . . entitled to have 

considered the propriety of the order denying his motion to 

file an amended complaint . . . " 

In denying the motion to amend, the District Court 

apparently reasoned that a Rule 15 motion to amend cannot be 

used to add a new plaintiff asserting a new claim. Rules 

15 (a) and (c) , M.R.Civ.P., provide in relevant part: 

(a) A party may amend his pleading once 

as a matter of course at any time before 

a responsive pleading is served or, if 

the pleading is one to which no 

responsive pleading is permitted and the 

action has not been placed upon the trial 

calendar, he may so amend it at any time 

within 20 days after it is served. 

Otherwise a party may amend his pleading 

only by leave of court or by written 

consent of the adverse party; and leave 

shall be freely given when justice so 

requires . . . 

(c) Whenever the claim or defense 

asserted in the amended pleading arose 

out of the conduct, transaction, or 

occurrence set forth or attempted to be 

set forth in the original pleading, the 

amendment relates back to the date of the 

original pleading. An amendment changing 

the party against whom a claim is 

asserted relates back if the foregoing 

provision is satisfied and, within the 

period provided by law for commencing the 

action against him, the party to be 

brought in by amendment (1) has received 

such notice of the institution of the 

action that he will not be prejudiced in 

maintaining his defense on the merits, 

and (2) knew or should have known that, 

but for a mistake concerning the identity 

of the proper party, the action would 

have been brought against him . . . 
In the instant case, there was a responsive pleading prior to 

the motion to amend the complaint. Therefore, plaintiffs 

needed leave of court to amend the pleadings. We have 

construed Rule 15 broadly and "it is the rule to allow 

amendments and the exception to deny them." Union 

Interchange, Inc. v. Parker (1960), 138 Mont. 348, 354, 357 

P.2d 339, 342. In White v. Lobdell (Mont. 1984), 678 P.2d 

637, 641-642, 41 St.Rep. 346, 351-352, this Court quoted with 

approval the United States Supreme Court's analysis of 

Federal Rule 15 in Foman v. Davis (19621, 371 U.S. 178, 

"Rule 15(a) declares that leave to amend 

'shall be freely given when justice so 

requires' ; this mandate is to be heeded . . . . If the underlying facts or 

circumstances relied upon by a plaintiff 

may be a proper subject of relief, he 

ought to be afforded an opportunity to 

test his claim on the merits. In -- the 

absence of any apparent or declared 

reason . . . the leave soughTshould, - as 

- the rules require, be 'freely given.' - Of 

course, the grant or denial of an 

opportunit to amend is within the 

discretionY - of - the ~istrTct Court, 

outright refusal to grant the leave 

without any justifyTng reasonappearing 

-- for the denial --- is not an exercise of 

discretion; - it - is merely abuse -- of thz 

discretion - and inconsistent - with - the 

L-- 

s~irit of the Federal Rules." (Emphasis 

added. ) 

We hold that the District Court abused its discretion in 

rejecting the motion to amend. The court found, incorrectly, 

that Rule 15 could not be used to add a new plaintiff 

asserting a new cause of action. Numerous federal cases have 

established that a motion to amend may add, or substitute, a 

new plaintiff. Further, the new plaintiff's claim can relate 

back und.er Rule 15 (c) , if the Rule 15 (c) requirements are 
met, so that an otherwise time-barred claim can be litigated. 

See, e.g., Staggers v. Otto Gerdau Company (2nd Cir. 1966), 

359 F.2d 292; Yorden v. Flaste (D.C. Del. 1974), 374 F.Supp. 

516; Garr v. Clayville (D.C. Del. 1976), 71 F.R.D. 553; 

Leachman v. Beech Aircraft Corp. (Ct.App. D.C. 1982), 694 

F.2d 1301; Stoppelman v. Owens (D.C. D.C. 1983), 580 F.Supp. 

944. Certain of the federal cases (Yorden, Garr and 

Stoppelman among them) rely heavily upon the Advisory 

Committee Note of 1966 to Rule 15 (c) , which states in part, 

The relation back of amendments changing 

plaintiffs is not expressly treated in 

revised Rule 15 (c) since the problem is 

generally easier. Again the chief 

consideration of policy is that of the 

statute of limitations, and the attitude 

taken in revised Rule 15(c) toward change 

of defendants extends by analogy to 

amendments changing plaintiffs. 

Given the implications of the Advisory Committee Note and the 

liberality with which leaves to amend are to be granted, we 

hold that a motion to amend can properly add a plaintiff and 

a new cause of action. We further hold that the District 

Court erred in this case in refusing to allow Priests to 

amend their complaint. 

Taylors argue that the loss of consortium claim is 

subject to a two year statute of limitations and that it is, 

therefore, time barred. We disagree. This Court has 

apparently never established the statute of limitations for 

such a claim. We now hold that a loss of consortium claim is 

subject to the three year statute of limitations provided in 

S 27-2-204, MCA, for tort actions. This Court recently 

agreed that 

[a] cause of action for consortium of the 

deprived spouse is separate and distinct 

from the claim of the injured spouse and 

that the basis for a consortium claim 
lies in the Montana statutes in which the 

husband and wife contract for obligations 

of mutual respect, fidelity, and support. 

Section 40-2-101, MCA. 

Bain v. Gleason (Mont. 1986), 726 P.2d 1153, 1155, 43 St.Rep. 

1897, 1899. Although an independent and distinct cause of 

action, a loss of consortium claim is also completely 

derivative from the other spouse's claim. Johnson v. United 

States (D.C. Mont. 1980), 496 F.Supp. 597. The defendant's 

conduct which gives rise to the husband's claim is the 

conduct which gives rise to the wife's claim. Maurice 

Priest's negligence claim is subject to the three year 

statute of limitations and it would be illogical and 

inequitable to subject the loss of consortium claim to a 

different time limit when both claims arise out of the same 

conduct. Given a three year statute of limitations, the loss 

of consortium claim was timely filed on August 28, 1985. 

Even if that claim had been filed past the filing 

deadline, we hold that under Rule 15 (c) , M.R.Civ.P., and 

Tynes v. Bankers Life Co. (Mont. 1986), 730 P.2d 1115, 43 

St.Rep. 2243, the loss of consortium claim would relate back 

to the time of the original complaint. We have already set 

forth above the "relation back" rule of Rule 15(c). In 

Tynes, Bankers Life issued a group health insurance plan for 

the employees of a plumbing shop owned by the Tynes family. 

Walter Tynes was an employee, the owner of the shop and the 

father of Kelley Tynes, a son who worked at the shop 

sporadically. In 1977, Kelley began experiencing severe 

mental problems. The Tynes family sought to secure coverage 

for Kelley's medical expenses through the group health 

insurance plan. After some confusion, Bankers Life denied 

coverage in September 1979 on the basis that Kelley was not 

an eligible employee. In December 1981, Kelley filed a 
complaint against Bankers Life alleging breach of contract. 

In May 1984, an amended complaint was filed adding Walter as 

a plaintiff and stating three claims, i.e., breach of 

contract, tortious breach of the implied covenant of good 

faith and fair dealing and tortious violation of Montana's 

insurance code. Kelley also amended his own complaint at 

that time to allege breach of the implied covenant of good 

faith and fair dealing and tortious violation of the 

insurance code. Bankers Life claimed the new claims were 

barred by statutes of limitation. This Court held that the 

trial court did not err in allowing Walter's claims to relate 

back to the time of Kelley's original complaint, thus evading 

the bar of the statutes of limitation. This Court found that 

Bankers Life would not be prejudiced, stating, 

The claims of the two parties are nearly 

identical. They arise from the exact 

same "conduct, transaction, or occurrence 

set forth . . . in the original pleading" 

as required by Rule 15(c), M.R.Civ.P. 

The pleadings contain the same causes of 

action. Finally, there is a "clear 

identity of interest" between Kelley and 

Walter. Walter was the original insured. 

He agreed, as Kelley's father, to be 

responsible for Kelley's medical bills 

incurred at Wilson Center. The only 

difference in the two pleadings is 

damages. 

Tynes, 730 P.2d at 1120-1121. Much the same can be said in 

the instant case. Linda's claim arises from the same 

occurrence set forth in her husband's original complaint, as 

required by Rule 15(c), M.R.Civ.P. There is a clear identity 

of interest between Linda and Maurice. The only additional 

element which Linda's claim entails is damages. Liability 

for the loss of consortium claim would be predicated upon 

liability for the original negligence claim. Taylors do not 
demonstrate, and we do not find, how they could be prejudiced 

by allowing the loss of consortium claim to relate back. 

Ample case law supports our decision today. In the 

oft-cited case of Williams v. United States (5th Cir. 1968), 

405 F.2d 234, the minor plaintiff's mother asserted the 

minor's claim, as his best friend, against the United States. 

The mother later sought leave to amend the complaint to add 

herself as a plaintiff and assert her own claim for loss of 

her child's services. The federal district court refused to 

allow her claim because of the statute of limitations bar. 

The Fifth Circuit Court of Appeals reversed and held that the 

amendment would be allowed, notwithstanding the statute of 

limitations. The court reasoned that the government had 

prior notice of the mother's claim because (1) under local 

law, liability to the minor would give rise to liability to 

the parent, and (2) the circumstances would reasonably 

indicate a likelihood the parent would incur losses of a 

recoverable kind. Emphasizing the identity of interest 

between the mother and child, the court found that allowing 

the amendment would not prejudice the government. Although 

Williams advances a somewhat stricter standard than our Tynes 

case, the factual situation is similar. 

An even more analogous case is Hockett v. American 

Airlines, Inc. (D.C. Ill. 1973), 357 F.Supp. 1343. In 

Hockett, the wife filed an amended complaint adding herself 

as a new plaintiff asserting a claim for loss of consortium. 

Her husband had filed the original complaint. The court 

found that the wife's claim was asserted within the statute 

of limitations. The court added, however, that even if the 

wife had asserted her claim after the statutory period, it 

would relate back under Rule 15(c) to the original complaint. 

The court emphasized that the loss of consortium claim was 
based upon the same allegations of negligence as the 

husband's claim. The court added that, 

[tlhe defendants cannot claim prejudice 

in this case since they have been fully 

advised of the facts upon which [the 

husband] has based his claim and have 

been vigorously preparing their defenses. 

Hockett, 357 F.Supp. at 1348. The same holds true in the 

instant case. 

Lastly, in Hoch v. Venture Enterprises, Inc. (D.C. V.I. 

1979), 473 F.Supp. 541, the plaintiff's wife sought leave to 

amend her husband's complaint to assert a claim for loss of 

consortium. She sought leave to amend after the statute of 

limitations had run on her claim. The federal court allowed 

her claim to relate back to the original complaint, reasoning 

that the defendant would not suffer prejudice. The court 

found that the wife's claim was based on the same allegations 

of negligence as her husband's and, therefore, the defendant 

had received the notice that the statute of limitations was 

intended to afford. 

These cases emphasize, and we agree, that amendments 

involving new plaintiffs will relate back only in very 

limited circumstances. Those circumstances are marked by a 

close identity of interest between the original plaintiff and 

the new plaintiff. Moreover, in this case, the claim is 

based on the same allegations of negligence as the original 

claim. We hold that Linda's claim would relate back to the 

original complaint if her claim had been filed after the 

limitation period. 

The third issue is whether the lower court properly 

prohibited the use of the printed signs during voir dire. 

Absent an abuse of discretion, . . . the 

trial court has great latitude in 

controlling voir dire. (Citation 

omitted. 
State v. LaMere (Mont. 1980), 621 P.2d 462, 466, 37 St.Rep. 

1936, 1941. Here, although the lower court prohibited the 

use of the signs, it stated that plaintiff's counsel could 

explain the concepts involved and ask the jurors if they had 

problems with those concepts. Thus, counsel could explore 

the jurors' perceptions. We hold that the court's refusal to 

allow the use of the signs was a reasonable limit on voir 

dire and not an abuse of discretion. 

Affirmed in part, reversed in part and remanded for new 

trial. 

&? 

Justices