No. 86-395 

IN THE SUPREMF COURT OF THE STATE OF MONTANA 

1986 

ANNE PETRIK, 

Plainti.ff and Appella~t, 

-vsROBERT COLFY, D.D.S., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Jud.icia1 District, 

In and for the County of Gallatin, 

The Honorable Joseph Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Eula Compton, Eozeman, Montana 

For Respondent: 

Berg, Coil, Stokes & Tollefsen; Don M. Hayes, 

Rozeman, Montana 

Submitted on Briefs: Oct. 30, 1986 

Decid-ed: December 31, 1986 

Filed: 

nFc 3.1 x~ss 

a& ---- Clerk 
r. Justice John C. Sheehy delivering the Opinion of the 

Court. 

Anne Petrik appeals a decision by the District Court of 

the Eighteenth Judicial District, Gallatin County, granting 

defendant-respondent Robert Colby's motion to dismiss her 

action for lack of personal jurisdiction. 

The issue raised on appeal is whether the District Court 

had personal jurisdiction over a defendant who had no contact 

with the State but who knew or should have known that his 

intentional act would cause injury in this state. 

In 1978, Dr. Robert Colby, a dentist who 1i~1es and 

practices in Tappan, New York, performed a root canal 

procedure on fellow New Yorker Anne Petrik. During the 

procedure, Dr. Colby broke a dental file, leaving the tip in 

Petrik's jaw. Apparently Dr. Colby never informed Petrik of 

the complication. Five years after the root canal operation 

Petrik moved to Montana. 

After she moved to Montana in 1983 the root canal work 

developed complications. As a result she brought suit in the 

Montana District Court against Dr. Colby in April, 1986, 

alleging damages for past and future dental expenses, lost 

teeth, disfigurement, and severe pain and suffering. She 

alleged these injuries to be the proximate result of Dr. 

Co1.by1s failure to warn her of the broken file tip 

immediately after the root canal procedure, and hj.s 

concealment of the infection it eventually caused. Dr. Colby 

was served with summons and complaint under the long-arm 

provisions of Rule 4F (1) , M.R.Civ.P. 

In May, 1986, Dr. Colby successfully challenged the 

Gal latin District Court 's - in personam jurisdiction. Ms. 
Petrik is appealing the District Court's order of dismissal, 

arguing that - in personam jurisdiction is reasonable because 

Dr. Colby committed an intentional tort and was aware that 

injury would accrue in Montana. We are unwilling to adopt 

Ms. Petrik's far-reaching interpretation of the state's 

long-arm statute, Rule 4B(1), M.R.CFv.P., and therefore 

affirm the District Court's order. 

There is a two-step analysis used to determine whether 

personal jurisdiction exists to allow an. action to be 

maintained in the courts of this state. We applied this test 

in May v. Figgins (1980), 186 Mont. 383, 386, 607 P.2d 1132, 

1134, where we cited the process set forth in 2 Moore's 

Federal Practice, Section 4.41-1[1] at 4-421: 

The court first must look to the State statute to 

determine whether the statute provides for the 

exercise of jurisdiction under the particular facts 

of the case, and second, the court must determine 

whether it would offend due process to assert 

jurisdiction. 

Appellant Petrik argues that where an intentional tort 

is involved (and she contends concealment of the breaking of 

the file was fra.udulent misrepresentation, an intentional 

tort), and wh.ere a defendant knows that injury from that tort 

will accrue in the forum state, the forum state may take 

personal jurisdiction regardless of the presence or absence 

of minimal contacts. She admits that Dr. Col.by was not 

personally found within the state so as to establish 

jurisdiction. However, she contends that it is sufficient 

for purposes of establishing jurisdiction that Dr. Colby's 

acts in New York state were intentional and resulted in the 

accrual of a tort within Montana. In other words, she argues 

that if Dr. Colby's act was intentional, then the exercise of 

jurisdiction comports with due process (and traditional 
notions of fair play and substantial justice) simply because 

the act was intentional. 

The May v. Figgins rule requires that we first look to 

our statute to see if it provides for the exercise of 

personal jurisdiction under our facts. Montana's long-arm 

statute states in pertinent part: 

. . . any person is subject to the jurisdiction of 

the courts of this State as to any claim for relief 

arising from the doing personally, through an 

employee, or through an agent, of any of the 

following acts: 

(b) the commission of any act which results in 

accrual within this State of a tort action. 

Rule 4B (1) , I4.R.Civ.P. 

On this point, the District Court held that the tortious 

act accrued in Montana, thereby satisfying the first of the 

two May requirements. For the purposes of this case only, we 

accept the District Court's finding. 

It is the second of the May requirements that prevents 

Montana courts from exercising personal jurisdiction. The 

issue this second requirement raises is whether the exercj-se 

of Montana jurisdiction is consistent with the protections 

afforded by the Due Process Clause, that is, whether the 

exercise of jurisdiction is fair and reasonable and comports 

with the traditional due process notions of fair play and 

substantial justice. 

The test this Court has adopted to measure the 

reasonableness of exercising the state's long-arm statute was 

developed by the Ninth Circuit Court of Appeals in Data D~SC, 

Inc. v. Systems Technology Assoc. (9th Cir. 1977), 557 F.2d 

1280, 1287 and was recently applied by this Court in Simmons 

v. State of Montana (Mont. 19831, 670 P.2d 1372, 1376, 40 
St.Rep. 1650, 1652, and Jackson v. Kroll, Pomerantz and 

Cameron (Mont. 1986), 724 P.2d 717, 43 St.Rep. 1622, 1626. 

The -- Data Disc analysis requires examination of seven 

basic factors to determine if exercise of - in personam 

jurisdiction is reasonable: 1) The extent of defendant's 

purposeful interjection into Montana; 2) The burden on 

defendant of defending in Montana; 3) The extent of 

conflict with the sovereignty of defendant's 

state; 4) Montana's interest in adjudicating the 

dispute; 5) The most efficient resolution of the 

controversy; 6) The importa.nce of Montana to plaintiff ' s 

interest and effective relief; and, 7) The existence of an 

alternative forum. 

The only contact Dr. Colby has had with the State of 

Montana is that his former patient, Anne Petrik, moved to 

Montana five years after he performed a root canal operation 

on her. Dr. Colby lives and practices in New York. The root 

canal work was done in New York. Anne Petrik did not reside 

in Montana until 5 years after having had the dental 

procedure. There are no allegations that Dr. Colby has done 

business in Montana, has assets in Montana, has maintained an 

office in Montana, has solicited business in Montana, has 

treated Anne Petrik while she has been in Montana, or has had 

any telephone conversations or corresponded with Anne Petrik 

while she has been in Montana. There is no allegation that 

Dr. Colby has had any contact with Montana. There are simply 

no facts to indicate that he has purposefully interjected 

himself in Montana or purposely availed himself of the 

privilege of conducting activities here. Finally, there is 

no allega-tion that justice cannot he had in New York. 
The burden on defendant of defending in Montana and 

plaintiff's burden of proving the alleged intentional tort of 

fraudulent misrepresentation both suggest that New York state 

is the most reasonable forum for this action. It offends 

this Court's sense of the traditional. notions of fair pl-ay 

and substantial- justice to require Dr. Colby to defend t.hi.s 

action in Montana. The only contact which Ms. Petrik asserts 

Dr. Colby has had with Montana i.s that five years after the 

root can3.l work was done he knew that Ms. Petrik was moving 

to Montana and should have known that there would be some 

harmful effect in Montana. 

The reasonableness considerations are not unlike those 

in Wright v. Yackley (9th Cir. 1972), 459 ~.2d 287. In 

Wright, Yackley was a South Dakota doctor who treated Wright 

whi1.e Wright was living in South Dakota. Wright moved from 

South Dakota to Idaho and sought to have prescriptions given 

by Yackley refilled in Idaho. This required confirmation of 

the prescriptions from Yackley, which he gave by furnishi.ng 

copies of the ori-ginal prescriptions. Wright alleged injury 

by the use of the drugs and brought suit in Idaho. The 

Federal District Court for Idaho dismissed for lack of 

jurisdiction. The Court of Appeals for the Ninth Circuit 

affirmed the District Court's action explaining: 

[tlhe idea that tortious rendition of such services 

is a portable tort which can be deemed to have been 

committed wherever the consequences forseeably were 

felt is wholly inconsistent with the public 

interest in having services of this sort generally 

available. 

Wright v. Yackley (9th Cir. 1972), 459 ~.2d at 289, 

The Court of Appeals balanced three factors to reach its 

determination that -. in personam jurisdiction was unreasonable. 

The first factor is the amount of contact between the 
defendant and the forum state. Wright, 459 F.2d at 290-291. 

As applied to Dr. Colby, it is clear that there was no 

systematic or continuous or indeed any effort on the part of 

the doctor to provide services in Montana. The second factor 

is "whether the nature of the contacts meant they were 

normally grounded outside of any relationship with the forum 

state." 459 F.2d at 290. This factor is not met, as the 

residence of Ms. Petrik in Kontana was incidental and wholly 

unrelated to the benefits provided by Dr. Colby in New York. 

Dr. Colby did not purposely avail himself in any way of the 

privilege of conduct.j.ng activities within Montana. Hanson v. 

Denckla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. 

The final factor is whether the forum state's natural 

interest in the protection of its citizens is countered by an 

interest in access to medical services whenever needed. Id. - 

This factor is also not applicable. We admit that Montana 

has a natural interest in protecting its citizens from injury 

by out-of-state doctors. The state also wants to insure that 

there are medical services to meet its citizens' needs 

wherever they go. However, in the instant case, the dental 

service was provided by a New Yorker, Dr. Colby, to a New 

Yorker, Anne Petrik. Anne Petrik was not a Montanan who 

traveled to New York for the dental work. Here, Anne Petrik 

moved to Montana five years after the work was performed, 

hence the protection versus access trade-off is not raised. 

In sum, the state interest does not, in view of the 

Wright and Jackson factors suffice to support exercise of 7 in 

personam jurisdiction. 

The decision of the