NO. 88-501 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

- 

DONALD J. TIGART, 

plaintiff and Respondent, 

-vsRICHARD J. THOMPSON, 

Defendant and Appellant, 

DOUGLAS C. BROOKINGS, 

plaintiff and Respondent, 

-vsDICK THOMPSON, 

Defendant and Appellant. 

RICHARD J. THOMPSON, 

Third-Party Plaintiff and Appellant, 

-vsDONALD J. TIGART, 

Third-Party Defendant and Respondent. 

APPEAL FROM: ~istrict Court of the Ninth Judicial ~istrict, 

In and for the County of Pondera, 

The Honorable R.D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lon T. Holden; ~ardine, Stephenson, Rlewett & Weaver, 

Great Falls, Montana 

For Respondent: 

I. Erik B. Thueson, Helena, Montana 

.-Patricia 0'~rien Cotter; Cotter & Cotter, Great Falls, ,. . ; Montana 

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. - 1 :- l?, -.-- L .I 

-.. r Submitted on ~riefs: April 27, 1989 

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. . I _ Decided: June 6, 1989 

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Filedc- -. I, > . .- -& 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. 

This is an appeal from an order of the District Court, Ninth 

Judicial District, granting plaintiffs Brookings and Tigart a new 

trial, granting them certain attorney fees and costs and ordering 

the production of an investigative file in the possession of 

defendant's insurance carrier. Defendant in the action below, 

Richard J. Thompson, appeals. 

The issues on appeal are whether the District Court erred 

(1) by granting plaintiffs1 motions for a new trial based on 

irregularities in the proceedings which deprived plaintiffs of a 

fair trial; 

(2) by awarding plaintiffs certain attorney fees and costs; 

(3) by ordering defendant's insurance carrier to produce its 

entire investigative file as it existed prior to the commencement 

of legal proceedings. 

Additionally, under Rule 14, M.R.App.P., respondent Brookings 

raises the following issue: whether the District Court erred by 

denying Brookingsl request for a ruling that Thompson individually 

or Thompson and ~igart jointly were negligent as a matter of law. 

We affirm in part and dismiss in part. 

This case stems from a single car accident which occurred on 

the afternoon of January 4, 1985, on U.S. Highway 91 near the City 

of Conrad, Montana. Plaintiff Tigart was driving his pickup south 

on Highway 91 with plaintiff Brookings as his passenger. While 

rounding an icy corner on that highway near the Branding Iron 

Restaurant and Bowling Alley, plaintiffs encountered defendant 

Thompson entering the highway in his pickup near the intersection 

of Highway 91 and Front Street. 

To avoid collision, Tigart let off of the accelerator and 

began pumping his brakes. His vehicle fishtailed on the ice and 

soon he lost control of it. The pickup veered across the highway 

and rolled into a steep ditch on the other side, injuring both 

Tigart and Brookings. 
Thompson apparently had not seen Tigart approaching, did not 

see him swerve and crash, and continued his route until he reached 

his home in Brady, Montana. Thompson was not aware of any accident 

or his possible part therein until several days later when he was 

contacted by Harris, the investigating highway patrol officer about 

his actions on January 4, 1985. 

At trial, plaintiffs offered testimony that Thompson entered 

the highway negligently from the bowling alley parking lot that day 

by failing to keep a proper lookout, failing to stop and failing 

to yield the right-of-way such that he created an immediate hazard 

to Tigart in violation of section 61-8-341, MCA. Further, 

plaintiffs alleged that such negligence legally caused their 

injuries. After the trial commenced, Brookings was allowed to 

amend his pleading asserting a separate negligence suit directly 

against Tigart, his driver. Tigart likewise was joined by Thompson 

as a third-party defendant. 

Thompson, during the entire course of discovery and pretrial 

proceedings, maintained that he knew nothing of the accident, had 

no knowledge of any actions or circumstances on the day in question 

and had no independent recollection of whether or not he was even 

in the vicinity that day. Thompson further denied in answers to 

interrogatories that he had given any statements to anyone, except 

for talking with Officer Harris who made no notes of the conversation. 

In her opening statement Tigartts attorney asserted that she 

could state "with confidencett that Thompson would not refute any 

of her evidence, and that actually what Thompson would say would 

be consistent with Tigartts contentions of what transpired on the 

highway that day. 

Much to the surprise of both plaintiffs, on the opening day 

of trial, defense counsel stated that the evidence would show that 

his client had been bowling at the Branding Iron, left the parking 

lot there, drove to Front Street, and entered the highway from 
Front Street (not from the parking lot as plaintiffs contended) 

after stopping at the stop sign, looking both ways and proceeding 

cautiously. For a defense, Thompson additionally asserted that 

Tigart was driving too fast for the conditions. 

Plaintiffs protested this new development. In chambers 

defense counsel explained that testimony would come in from Officer 

Harris who interviewed Thompson in connection with the accident. 

However, Harris took no notes from his conversation with Thompson 

and would be relying solely on his recollection of the conversation 

which occurred some three years earlier. 

The trial judge ruled that Harris would not be allowed to 

testify as an expert witness at trial because he had not been 

identified by defense counsel as an expert in the pretrial order. 

Rather, he would only be able to testify as a fact witness as to 

what occurred at the accident scene when he arrived some twenty 

minutes after impact. This development and ruling severely limited 

the testimony that defense counsel could get in to prove the case 

asserted in opening statements. 

However, on the Friday of the first week of trial, after the 

close of Brookingst case, defense revealed for the first time that 

Thompson had actually given a statement to his insurance carrier, 

Safeco, which was tape-recorded just eleven days after the 

accident. This came to light during the course of trial when 

Tigartts attorney subpoenaed the insurance adjuster and his 

records. Just before the adjuster was to testify, defense counsel 

notified the court and the plaintiffs that the statement existed. 

The adjuster testified that all investigative files were kept 

in the Spokane, Washington, regional office. The tape was likewise 

in Spokane. It was agreed that the tape would be transcribed 

immediately. The tape was transcribed over the weekend and 

express-mailed to the Great Falls office where defense counsel 

turned it over to the plaintiffs for the first time. 
Plaintiffs proceeded in trial on Monday and were allowed to 

read portions of the Thompson statement to the jury. The statement 

was to the effect that Thompson did not see the Tigart vehicle and 

had no knowledge of the accident. However, he was at that bowling 

alley on that day at that time; he remembered the road conditions 

as being "ripe for skatingn; he was "slow getting on the highway"; 

and he also placed himself at the Front Street intersection, rather 

than entering the highway from the bowling alley parking lot. 

Plaintiffs moved for a new trial based on surprise and for 

personal sanctions against defense counsel for concealment of 

evidence. Sanctions were not imposed; however, when a defense 

verdict was returned by the jury, the trial judge granted plaintiffst motions for a new trial. The judge further ordered that 

defendant pay attorney fees and costs associated with the first 

trial and incurred from the close of discovery until the completion 

of the appeal. Finally, the court ordered the defendant to produce 

the entire Safeco investigative file as it existed prior to the 

lawsuit being filed, based on a possibility that there may be even 

more undisclosed witness statements in the file. 

Defendant appeals. 

I. New Trials 

The District Court granted a new trial based on irregularities 

in the proceedings which deprived plaintiffs of a fair trial. We 

agree. 

Section 25-11-102, MCA, provides: 

Grounds for a new trial. The former verdict 

or other decision may be vacated and a new 

trial granted on the application of the party 

aggrieved for any of the following causes 

materially affecting the substantial rights of 

such party: 

(1) irregularity in the proceedings of the 

court, jury or adverse party . . . by which 

either party was prevented from having a fair 

trial ; 
Defense counsel contends that it was mere inadvertence and not 

concealment which prohibited the production of the defendant's 

statement during discovery. Such inadvertence surprised plaintiffs 

and materially affected their substantial right to a fair trial. 

AS the District Court noted in its order, "Because of these new 

contentions and the surprise that they engendered, the plaintiffs 

were forced to try to do discovery during the course of trial." 

Prior to trial, both plaintiffs believed that the facts were 

uncontested because Thompson recalled nothing with which to dispute 

their evidence. However, at trial, many material facts were 

disputed from the speed of the vehicles and the condition of the 

road to the place from which Thompson actually entered the highway. 

The order of the trial judge granting a new trial with regard 

to the direction of the trial states: 

The defendant has prevented the plaintiffs 

from receiving a fair trial and has created 

unfair surprise at trial by withholding a 

major piece of evidence until after the trial 

commenced. 

. . . the defendant Is contentions in the final 

pretrial order are devoid of any contentions 

concerning where or when Thompson pulled out 

onto the highway. Thus up until the time of 

trial, both this Court and the Plaintiffs were 

left with the impression--if not express 

contentions--that the defendant would take no 

position concerning his whereabouts or actions 

related to the subject accident. 

During the trial, the defense contended that 

the plaintiffs had major credibility problems 

because they were contending that the defendant's evidence showed he pulled out from 

Front Street. On closing argument, the defense attorney stated that the plaintiffs and 

at least Tigartls attorney had reshaped the 

facts because the driveway (parking lot) 

better fit their theory of liability. 
Defendant's contention that this surprise did not I1materially" 

affect the substantial rights of the plaintiffs is without merit. 

The importance of the evidence cannot be underestimated, as it is 

the sole record of defendant's recollection. Thompson was eighty 

years of age at the time of the first trial and may very well have 

had a lack of independent recollection of the day in question. 

Granting a new trial is within the sound discretion of the 

trial court. Benner v. B.F. Goodrich, Co. (1967), 150 Mont. 97, 

430 P.2d 648. This discretion is not without limitation. Nelson 

v. Fairmont Hot Springs (Mont. 1988), 763 P.2d 1135, 45 St.Rep. 

2042. However, an order granting a new trial will not be set aside 

absent a showing of abuse of discretion. Tope v. Taylor (Mont. 

1988), 768 P.2d 845, 45 St.Rep. 2242; State v. DeMers (Mont. 1988), 

762 P.2d 860, 45 St.Rep. 1901. 

The credible evidence of this record shows that defense 

counsel denied the existence of a critical piece of evidence during 

discovery and then produced it during trial, after the close of 

Brookingsl case. Defense counsel in resisting the motion for new 

trial argued that nothing "irregularl1 had happened. What defense 

counsel views as nothing wirregularl' in the course of this trial 

is a view that could only be shared with himself. Based on this 

record, defense counsel cannot make a showing that the District 

Court abused its discretion in ordering a new trial. That portion 

of the District Court order is affirmed. 

11. Attorney Fees 

Although the District Court did not assess personal sanctions 

against defense counsel, it awarded certain fees and costs in an 

amount to be determined to both plaintiffs pursuant to section 37- 

61-421, MCA. That portion of this appeal is dismissed without 

prejudice. The issue of attorney fees and costs is not in the form 

of a final order, and thus, the appeal is premature. This Court 

has held that there must be a final judgment from which an appeal 

may be taken before we are vested with jurisdiction. Rule 1, 
M.R.App.P.; In Re Marriage of Adams (1979), 183 Mont. 26, 598 P.2d 

197; State ex rel. Raw v. City of Helena (1961) , 139 Mont. 343, 363 

Further, it is the duty of the attorneys involved in an appeal 

to bring this to the attention of the Court. As we stated in In 

Re Adoption of B.G.B. (1979), 183 Mont. 347, 599 P.2d 375: 

Too often this Court is confronted with cases 

that are not ready for appellate review within 

the meaning of the rules, but where the opposing parties do not bring this crucial fact to 

our attention. We often do not discover this 

until we are deeply into the process of review 

and indeed often in the opinion-writing stage. 

We cannot and will not tolerate this state of 

affairs. 

. . . If for some reason it is appealed 

prematurely, it is the duty of the parties to 

bring this to our attention by an appropriate 

motion to dismiss . . . 

599 P.2d at 381. This portion of the appeal is dismissed. 

111. Investigative File 

The District Court ordered the defendant to turn over Safeco's 

entire investigative file as it existed prior to the filing of the 

complaint. That order is not entirely supported by the law in 

Montana. 

Certainly, the judge was protecting any work product which 

would have been generated after the legal action was commenced and 

was merely assuring the exchange of discoverable information in 

fulfillment of the letter and the spirit of discovery rules. 

However, we conclude that there is no legal basis for such a broad 

order. That portion of the District Court order is reversed and 

modified as follows: 

We order that any and all witness statements in Safecots file 

be disclosed. We held in Cantrell v. Henderson (Mont. 1986), 718 

P.2d 318, 43 St.Rep. 745, that a witness statement given by the 

defendant to his insurance carrier prior to the filing of the 
complaint is discoverable. Admittedly, defense counsel does not 

dispute the discoverability of the Thompson statement, but rather 

cites mere inadvertence for his failure to disclose. We have in 

this case a failure to disclose discoverable documents through 

negligent or willful conduct, thus warranting this Courtts order 

that all such statements in Safecots possession be revealed. 

However, any motion to disclose an entire investigative file 

must be objected to by specific objections to any part which the 

defendant does not wish to disclose. Then the District Court can 

handle those objections during the normal course of the discovery 

process. This may require the plaintiffs to make additional, more 

specific requests for particular pieces of information. 

IV. Rule 14, M.R.App.P. 

We do not reach the issue of whether the District Court 

improperly denied Brookings a ruling under Rule 14 regarding 

negligence as a matter of law. Brookings failed to appeal properly 

this issue because he did not file a cross-appeal. 

This Court does not review issues outside of those raised by 

the appellant. Mydlarz v. Palmer/Duncan Construction Co. (1984), 

209 Mont. 325, 682 P.2d 695. As we stated in Mydlarz, "Although 

Rule 14, M.R.App.civ.P., provides for review of matters by crossassignment of errors, this does not eliminate the necessity for 

cross-appeal by a respondent who seeks review of matters separate 

and distinct from those sought to be reviewed by appellant." 

Mydlarz, 682 P.2d at 700. 

In summary, we affirm the District Court order for a new 

trial; we dismiss without prejudice the appeal regarding certain 

attorney fees and costs; disclosure is ordered of all witness 

statements, written, taped, or otherwise, in Safecots file, and we 

dismiss Brookings' appeal of the denial of a Rule 14, M.R.App.P., 

ruling . 
The case is remanded to the District Court for further 

proceedings consistent with this opinion. 

We concur: 

Justices /?