No. 95-024 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

JAMES EDWARD CHANCE, III, 

Plaintiff and Appellant, 

v. 

CAROL THOMAS HARRISON and the 

MONTANA HUMAN RIGHTS COMMISSION, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Samuel M. Warren, St. Peter & Warren, P.C., 

Missoula, Montana 

For Respondents: 

Rex Palmer, Attorneys, Inc., P.C., Missoula, 

Montana 

Paulette Kohman, Montana Human Rights Commission, 

Helena, Montana 

Filed: 

Submitted on Briefs: May 26, 1995 

Decided: July 17, 1995 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

James Edward Chance, III (Chance), appeals the decision of the 

Fourth Judicial District Court, Missoula County, denying his motion 

for summary judgment. We affirm. 

The sole issue on review is whether the District Court erred 

in denying Chance's motion for summary judgment on the grounds that 

the statute of limitations was equitably tolled. 

Carol Thomas Harrison (Harrison) went to work for Chance in 

September 1986. Harrison groomed and trained Chance's horses and 

maintained and cleaned his barn. Harrison terminated her employment with Chance on March 17, 1987, following several alleged 

incidents of sexual harassment. 

On September 28, 1987, Harrison filed a civil suit in the 

Fourth Judicial District Court, Missoula County, alleging various 

torts against Chance. On October 18, 1989, the District Court 

dismissed Harrison's claim. The court determined that all 

allegations set forth in her complaint stemmed from the alleged 

sexual harassment by Chance. The court went on to conclude that, 

pursuant to § 49-2-509, MCA, a claimant alleging sexual harassment 

must exhaust his or her administrative remedies with the Montana 

Human Rights Commission. Because Harrison had not pursued her 

administrative remedies with the Human Rights Commission, the 

District Court dismissed her claim without prejudice. 

Harrison appealed the District Court's decision to this Court. 

In affirming the District Court, we concluded that 5 49-2-509, MCA, 

provided Harrison's exclusive remedy. Harrison v. Chance (1990), 
244 Mont. 215, 797 P.2d 200 (Harrison I). We noted, in dicta, that 

due to the enactment of an amendment to § 49-2-509, MCA, between 

the time Harrison terminated her employment with Chance and the 

filing of her complaint in District Court, the 180-day statute of 

limitation for filing a claim with the Human Rights Commission may 

be equitably tolled. Harrison I, 797 P.2d at 208. 

Harrison filed a complaint with the Human Rights Commission on 

December 20, 1990. The hearing examiner determined that, while 

more than 180 days had elapsed since Harrison's discharge, the 

statute of limitations was equitably tolled. The hearing examiner 

relied on this Court's dicta in Harrison I in tolling the statute 

of limitations. 

Following a hearing, the hearing examiner held in favor of 

Harrison, awarding over $43,000 in lost wages and other damages. 

Chance appealed the decision of the Human Rights Commission to the 

Fourth Judicial District Court, Missoula County, arguing that 

Harrison's claim was not timely filed and that the 180-day statute 

of limitations should not have been equitably tolled. Chance moved 

for summary judgment on these grounds. The court denied Chance's 

motion for summary judgment, upholding the decision of the Human 

Rights Commission. Chance appeals the denial of his motion for 

summary judgment. 

Did the District Court err in denying Chance's motion for 

summary judgment on the grounds that the statute of limitations was 

equitably tolled? 
We review a district court's denial of a summary judgment 

motion de nova. Summary judgment is proper only when there exists 

no genuine issue of material fact and the moving party is entitled 

to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Minnie v. 

City of Roundup (1993), 257 Mont. 429, 849 P.2d 212. 

Chance argues that Harrison's claim with the Human Rights 

Commission should have been time-barred because she did not file 

her complaint within the 180-day statute of limitation. We 

disagree. 

On March 17, 1987, the date of Harrison's termination, an 

appeal to the Human Rights Commission was not Harrison's exclusive 

remedy. Pursuant to our decision in Drinkwalter v. Shipton Supply 

Company, Inc. (1987), 225 Mont. 380, 732 P.2d 1335, an individual 

alleging sexual harassment could initiate proceedings directly in 

the district court without first filing a complaint with the Human 

Rights Commission. In Drinkwalter we stated: 

If we were to decide the Human Rights Act provides the 

sole and exclusive remedy for all claims arising out of 

sexual harassment, we would also be imposing the 180 day 

statute of limitation found in § 49-2-501(2), MCA, on 

every possible remedy. We therefore find the 

imposition of the 180 day statute of limitations to be 

further proof of the legislature's intent that the Human 

Riqhts Act not be the sole remedv for acts which also 

qive rise to a cause of action independent of the 

statute. 

Drinkwalter, 732 P.2d at 1339 (emphasis added). 

However, on April 16, 1987, after Harrison's termination but 

prior to the filing of her initial complaint in District Court, a 

legislative amendment of § 49-2-509, MCA, went into effect. The 

amendment added the following provision to § 49-2-509, MCA: 

4 
(7) The provisions of this chapter establish the 

exclusive remedy for acts constituting an alleged 

violation of this chapter, including acts that may 

otherwise also constitute a violation of the discrimination provisions of Article II, section 4, of the Montana 

constitution or 49-l-102. No other claim or request for 

relief based upon such acts may be entertained by a 

district court other than by the procedures specified in 

this chapter. 

This amendment effectively overruled this Court's decision in 

Drinkwalter and mandated that the Human Rights Act was the sole and 

exclusive remedy for a sexual harassment cause of action. 

Harrison proceeded with her case in District Court. The 

District Court dismissed her cause of action based on the amended 

language of 5 49-z-509, MCA, set forth above. In affirming the 

District Court's decision, we noted that Harrison might still be 

able to instigate an action with the Human Rights Commission 

despite the clear elapse of 180 days since the time of her 

discharge. We stated: 

In Erickson v. Croft (1988), 233 Mont. 146, 760 P.2d 

706, this Court looked favorably upon the doctrine of 

equitable tolling. Under that doctrine, the statute of 

limitations may be tolled when a party reasonably and in 

good faith pursues one of several possible legal remedies 

and the claimant meets three criteria: 

"(1) timely notice to the defendant within the 

applicable statute of limitations in filing the 

first claim; (2) lack of prejudice to defendant in 

gathering evidence to defend against the second 

claim; and (3) good faith and reasonable conduct by 

the plaintiff in fiiing the second claim." 

Erickson, 233 Mont. at 150-51, 760 P.2d at 708. In 

Erickson, we found no need to adopt equitable tolling 

because the appellant failed to meet the first criteria; 

the first claim did not give adequate notice of the 

second claim. Erickson, 233 Mont. at 152, 760 P.2d at 

709. 

5 
Under the facts of this case, the doctrine of 

equitable tolling may be appropriate if Harrison refiles 

her claim with the Human Rights Commission. Unlike 

Erickson, here the District Court claim may give Chance 

adequate notice of a claim before the Commission. 

Furthermore, in filing with the District Court, the 

appellant appears to have relied reasonably and in good 

faith upon this Court's holding in Drinkwalter. As a 

case of first impression holding that the legislature 

overruled Drinkwalter, this case should not prevent the 

appellant from having her substantive claims heard by the 

Human Rights Commission. 

Harrison I, 797 P.2d at 208. 

First, we note that at the time of the alleged torts, Harrison 

had two legal remedies. Pursuant to our decision in Drinkwalter, 

Harrison was entitled to file her claim in District Court or pursue 

her administrative remedies with the Human Rights Commission. 

Unlike our recent decision in Hash v. U.S. West (1994), 268 Mont. 

326, 886 P.2d 442, Harrison reasonably and in good faith pursued 

one of two potential legal remedies. We declined to apply the 

doctrine of equitable tolling in Hash because at the time of Hash's 

claim, the legislature had already amended 5 49-z-509, MCA, and 

this Court had handed down its decision in Harrison I in which we 

determined that the amended language of § 49-Z-509(7), MCA, 

precluded bringing sexual harassment claims in district court. 

Hash, 886 P.2d at 446. Therefore, Hash had only one legal remedy, 

that being to file her claim with the Human Rights Commission. 

Hash is thus clearly distinguishable from this case. 

Harrison relied reasonably and in good faith on this Court's 

holding in Drinkwalter. A review of our decision in Harrison I 

reveals Harrison reasonably believed that the amended version of 

§ 49-2-509, MCA, either was inapplicable to her claims or, if 

6 
applicable, would not apply because the alleged torts occurred 

before the effective date of the statute. 

Harrison filed her initial claim within the applicable statute 

of limitation. The final tort allegedly occurred on March 17, 

1987, the day Harrison terminated her employment with Chance. 

Harrison filed her complaint in District Court on September 28, 

1987. Such a filing was weil within the applicable three-year tort 

statute of limitations. Section 27-2-204, MCA. Chance argues 

that, under Erickson v. Croft (1988), 233 Mont. 146, 760 P.2d 706, 

Harrison had a duty to file her complaint within 180 days, the 

statute of limitations applicable for a Human Rights Commission 

claim. 

Even if such an interpretation of Erickson is correct, we 

conclude that Harrison satisfied the X8@-day filing requirement. 

Prior to the amendments to § 49-z-509, MCA, Harrison was entitled 

to file her complaint in District Court. Only after 5 49-2-509, 

MCA, was amended was Harrison required to file with the Human 

Rights Commission. The amendment to § 49-2-509, MCA, went into 

effect on April 16, 1987. The 180-day statute of limitations 

therefore commenced running on the effective date of the statute, 

not on March 17, 1987. Harrison filed her initial claim in 

District Court within 180 days of the April 16 effective date of 

the amendment. Harrison therefore satisfied the Human Rights 

Commission statute of limitation as well as the tort statute of 

limitation. 
A review of the record reveals that Chance was not prejudiced 

in gathering evidence to defend against the claim filed with the 

Human Rights Commission. Extensive discovery took place in 

conjunction with Harrison's initial complaint filed in District 

Court. Chance submitted depositions to the hearing examiner and 

testified telephonically at the hearing. The record does not 

support Chance's allegations that he was prejudiced by Harrison's 

delayed filing with the Human Rights Commission. 

Finally, it is clear to this Court that Harrison acted in good 

faith in filing her claim with the Human Rights Commission. 

Harrison justifiably relied on this Court's holding in Drinkwalter 

in pursuing her District Court claim. After we determined that her 

claim was subject to the amended version of 5 49-Z-509, MCA, 

Harrison promptly filed her claim with the Human Rights Commission. 

Harrison demonstrated reasonable conduct and good faith throughout 

these proceedings. 

We conclude that equitable tolling is applicable to the facts 

and circumstances of this case and that Harrison has satisfied the 

elements necessary to invoke equitable tolling as discussed 

Erickson. We therefore hold that there are no genuine issues 

material fact and Harrison is entitled to a judgment as a matter 

law. We affirm the decision of the District Court. 

in 

of 

of 

/ 

~/ -LNe-- 

Chief Justice 
We concur: 

9