No. 86-331 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

BOZEMAN DEACONESS HOSPITAL, 

Petitioner and Appellant, 

-vsIN RE THE MATTER OF THE ESTATE OF 

OSCAR ROSENBERG, Deceased, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morrow, Sedivy & Bennett; Edmund P. Sedivy, Jr. argued, 

Bozeman, Montana 

For Respondent: 

Larry Moran argued, Bozeman, Montana 

Submitted: December 2, 1986 

Decided: February 3, 1987 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Petitioner Bozeman Deaconess Hospital appeals the April 

21, 1986, order of the Eighteenth Judicial District Court 

awarding summary judgment in favor of the respondent. We 

affirm. 

This case is an action filed by the hospital against the 

estate of Oscar Rosenberg seeking payment of $11,583.05 plus 

interest for hospital services provided to Rosenberg prior to 

his death. 

Oscar Rosenberg was admitted to the Bozeman Deaconess 

Hospital Extended Care Facility in 1976. In October of 1980, 

Rosenberg nearly drowned in a bathtub at the facility. 

Complications arising from the accident resulted in 

Rosenberg's death November 4, 1980. Elwin Kundert, 

Rosenberg ' s nephew, who had power of attorney for Rosenberg 

since 1975, was appointed personal representative. 

Two hospital bills amounting to nearly $28,000 were sent 

to Kundert's address on November 9, 1980. The hospital 

business office manager's affidavit states that Kundert was 

in the business office several times during the two months 

following Rosenberg's death to receive additional copies of 

the bills. Kundert admits that he received the hospital 

bills shortly after Rosenberg's death. 

Publication of Notice to Creditors began on December 2, 

1980. None of the creditors filed formal creditor's claim 

forms; rather they sent their bills to Kundert. Kundert paid 

all creditors except the hospital. 

Section 72-3-805, MCA, provides that a claim against the 

estate is disallowed if the personal representative fails to 

take action on the claim within 60 days of receipt. In this 
case, Kundert took no action on the hospital's bills. 

However, the hospital apparently believed Kundert planned on 

paying the bills because he had visited the hospital business 

office several times to make sure he had all the bills and 

said nothing about denying payment of any claim. 

When Kundert failed to notify the hospital within 60 

days of presentation of the bills, the hospital had another 

60 days to petition the court to challenge the disallowance 

pursuant to S 72-3-805, MCA. The hospital did not meet this 

deadline. 

Medicare covered $17,307 of Rosenberg's $27,290 hospital 

bill. The remainder, $9,983, was listed by Kundert as an 

expense of last illness on estate tax forms filed with the 

State of Montana and the IRS. This representation conflicts 

with Kundert's failure to pay the hospital. 

Kundert, representing the estate, filed a wrongful death 

action on June 17, 1982, against the hospital alleging the 

hospital's negligence caused Rosenberg's death. The hospital 

failed to counterclaim for expenses incurred in treating 

Rosenberg. The jury found the hospital 100% negligent in 

causing Rosenberg's death and awarded $31,247 to the estate. 

On February 16, 1984, the hospital filed a formal 

creditor's claim in district court against the estate for 

$11,583. The estate filed a denial of the claim on March 1, 

1984, which asserted such claim was barred by collateral 

estoppel and statute of limitation. After denial of its 

claim, the hospital petitioned district court for allowance 

of the claim. 

Following discovery, both parties moved for summary 

judgment. The court awarded summary judgment in favor of the 

estate, finding that the hospital's claim was barred for 
failure to meet the time limits contained in 5 72-3-805. In 

the court's supporting memorandum, the court noted that 

non-action on a claim by a personal representative 

conclusively establishes disallowance after 60 days and 

estoppel may not run against the personal representative. 

One week later, Northwestern Bank v. Coppedge (Mont. 1986), 

713 P.2d 523, 43 St.Rep. 102, held that an estate may be 

estopped from raising a non-claim defense if the estate made 

representations to a creditor that a claim need not be filed. 

Following the Coppedge decision, the hospital filed a 

motion for reconsideration and to amend judgment. The 

District Court denied the motion and this appeal followed. 

On appeal, we address the following issue: 

1) Whether the District Court erred in granting summary 

judgment in favor of the estate? 

The statute at the center of the parties' dispute is § 

72-3-805(1), MCA, which provides: 

As to claims presented in the manner described in 

72-3-804 within the time limit prescribed in 

72-3-803, the personal representative may mail a 

notice to any claimant stating that the claim has 

been disallowed. If, after allowing or disallowing 

a claim, the personal representative changes his 

decision concerning the claim, he shall notify the 

claimant. The personal representative may not 

change a disallowance of a claim after the time for 

the claimant to file a petition for allowance or to 

commence a proceeding on the claim has run and the 

claim has been barred. Every claim which is 

disallowed in whole or in part by the personal 

representative is barred so far as not allowed 

unless the claimant files a petition for allowance 

in the court or commences a proceeding against the 

personal representative not later than 60 days 

after the mailing of the notice of disallowance or 

partial allowance if the notice warns the claimant 

of the impending bar. Failure of the personal 
representative to mail notice to a claimant of 

action on his claim for 60 days after the time for 

original presentation of the claim has expired has 

the effect of a notice of disallowance. 

In this case, Kundert received copies of the hospital 

bills. There is no dispute that the hospital properly filed 

a claim. The estate contends 5 72-3-805, MCA, is a non-claim 

statute not subject to equitable considerations. The 

hospital argues that the estate should be estopped from 

denying its claim in view of Kundert's representations and 

subsequent acknowledgement of the debt on estate tax forms. 

In Coppedge, supra, Northwestern Bank never filed a 

creditor's claim with the estate nor did it commence a court 

proceeding to protect its claim. Instead, bank 

representatives negotiated with the estate's attorneys for 

payment or renewal of the note owed the bank. In finding 

that an estoppel issue had been raised, this Court stated: 

Northwestern Bank contends and the trial judge 

found that the estate, by and through its 

attorneys, knew of the bank's claim against the 

estate. Such knowledge, however, does not dispense 

with Northwestern Bank's need to file a creditor's 

claim. If Northwestern Bank can prove that the 

attorneys for the estate represented that because 

they knew of Northwestern Bank's claim, no 

creditor's claim need be filed and if the Bank 

relied on this representation, the estate could be 

estopped from raising Northwestern Bank's failure 

to file a creditor's claim as a defense. Norman v. 

State (1979), 182 Mont. 439, 443-444, 597 P.2d 715, 

718. We therefore remand for a hearing to 

determine whether the estate, by or through its 

attorneys, represented to Rank that it need not 

file a creditor's claim. 
Coppedge was issued the week following the District 

Court order granting summary judgment to the estate. On 

motion for reconsideration, a new judge assumed jurisdiction 

and affirmed the summary judgment finding insufficient facts 

to support estoppel. We agree that the facts do not raise 

the issue of estoppel and summary judgment was properly 

granted as a matter of law. 

The elements of proof for equitable estoppel are: 

1) false representation or concealment of facts; 

2) made with actual/or constructive knowledge of the 

facts; 

3) to a party without knowledge, or means of knowledge 

of the facts; 

4) with intention or expectation that the party will 

rely on such representations; 

5) the party does rely and act upon such 

representations; 

6) causing prejudice to the party. 

Wassberg v. Anaconda Copper Co. (Mont. 1985), 697 P.2d 909, 

42 St.Rep. 388. 

The affidavit of the hospital business office manager 

states: I' [Kundert] told me that he was handling Mr. 

Rosenberg's estate and he needed copies for the estate so 

that the estate could pay the bill." This is the only 

evidence produced by the hospital as to estoppel. Kundert's 

deposition testimony is that he was undecided whether to pay 

the hospital bill at the time he received it. There is no 

evidence as to elements 1, 2, and 4, above set forth. 

Summary judgment against the hospital on the issue of 

estoppel was proper. Estoppel will be sustained only upon 
kc- * 3. 

clear and convincing evidence. Kenneth D. Collins Agency v. 

Hagerott (Mont. 1984), 684 P.2d 487, 41 St.Rep. 1375. 

The hospital contends Kundert waived the statute of 

limitation on the claim by subsequent acknowledgment of the 

debt. Kundert listed the hospital bill as a medical expense 

on estate tax forms filed August 25, 1981, and as damages in 

the wrongful death suit filed in June, 1982. 

Prior to our decision in Coppedge, supra, this Court 

strictly construed Montana's non-claim statute relating to 

filing of creditor's claims. Failure to meet the time limits 

for filing a claim forever barred such claim. Baker National 

Bank v. Henderson (1968), 151 Mont. 526, 445 ~.2d 574. 

Coppedge carved out a single exception for equitable 

estoppel. 

One of the underlying purposes of the Uniform Probate 

Code (UPC) listed in § 72-1-102, MCA, is to "promote a speedy 

and efficient system for liquidating the estate of the 

decedent and making distribution to its successors.'' This 

purpose is clearly supported by the presumed disallowance 

provision in § 72-3-805, MCA, and the non-claims bar in S 

72-3-803, MCA. 

There is no provision in the UPC extending the time for 

filing or contesting claims based upon subsequent 

acknowledgment of debt. Section 72-3-802, MCA, does allow 

the personal representative to waive the limit with the 

consent of all successors. There is no evidence in this case 

that Kundert waived the time limit as to the hospital's 

claim. 

Contrary to the hospital's assertion, Kundert's 

subsequent acknowledgment of the hospital claim is not 

relevant for estoppel purposes. Kundert's acknowledgment of 
the hospital claim occurred months after the time limit had 

run for contesting a claim, and his subsequent acknowledgment 

does not provide evidence as to his intent at the time he 

spoke with the hospital's business office manager. There 

being no evidence to support the elements of estoppel, the 

presumed disallowance provision forever bars the hospital's 

claim. 

The District Court is affirm 

We concur: 

-4- 
IN TH.E SUPREME COURT OF THE STATE OF MONTA~~?~~' r-ij2 331 & "jgR .+- s:e4 + ;.-f I 

No. 86-&+& ~-4 MAR 2 -2 1,287 - 

BOZEMAN DEACONESS HOSPITAL, 

Petitioner and Appellant, 

IN RE THE MATTER OF THE ESTATE OF 

OSCAR ROSENBERG, Deceased, 

Defendant and Respondent. 

ORDER 

Our opinion in the case of Bozeman Deaconess Hospital v. 

In Re the Matter of the Estate of Oscar Rosenberg (Mont. 

1.987), - P. 2d - , 44 St.Rep. 195, requires correction. 

The following paragraphs shall be del-eted from the 

opinion : 

Section 72-3-805, MCA, provides that a claim 

againqt the estate is disallowed if the personal 

re.presentative fails to take action on the claim 

within 60 days of receipt. In this case, Kundert 

took no action on the hospital's bills. However, 

the hospital apparently believed Kundert planned on 

paying the bills because he had visited the 

hospital business office several times to make sure 

he had all the bills and said nothing about denying 

payment of any claim. 

When Kundert failed to notify the hospital within 

60 days of presentation of the bills, the hospital 

had another 60 days to petition the court to 

challenge the disallowance pursuant to § 72-3-805, 

MCA. The hospital did not meet this deadline. 

Following discovery, both parties moved for summary 

judgment. The court awarded summary judgment in 

favor of the estate, finding that the hospital's 

claim was barred for failure to meet the time 
limits .contained in S 72-3-805. In the court's 

supporting memorandum, the court noted that 

non-action on a claim by a personal representative 

conclusively establishes disallowance after 60 days 

and estopped may not run against the personal 

representative. One week later, Northwestern Bank 

v. Coppedge (Mont. 1986), 713 P.2d 523, 43 St.Rep. 

102, held that an estate may be estopped from 

raising a non-claim defense if the estate made 

representations to a creditor that a claim need not 

be filed. 

The above paragraphs shall be replaced by the following: 

Section 72-3-805, MCA, provides that a claim 

against the estate is disallowed if the personal 

representative fails to take action on the claim 

for 60 days after the time for original 

presentation of the claim has expired. In this 

case, Kundert took no action on the hospital's 

bills. However, the hospital apparently believed 

Kundert planned on paying the bills because he had 

visited the hospital business office several times 

to make sure he had all the bills and said nothing 

about denying payment of any claim. 

When Kundert failed to notify the hospital within 

60 days after the time for original presentation of 

the claim expired, the hospital had another 60 days 

to petition the court to challenge the disallowance 

pursuant to S 72-3-805, MCA. The hospital did not 

meet this deadline. 

Following discovery, both parties moved for summary 

judgment. The court awarded summary judgment in 

favor of the estate, finding that the hospital's 

claim was barred for failure to meet the time -- 

limits contained in S 72-3-805. In the court's 

supporting memorandum, the court noted that 

non-action on a claim by a personal representative 

conclusively establishes disallowance after 60 days 

from the time for original presentation of the 

claim has expired and estoppel may not run against 

the personal representative. One week later, 

Northwestern Bank v. Coppedge (Mont. 1986), 713 

P.2d 523, 43 St.Rep. 102, held that an estate may 

be estopped from raising a non-claim defense if the 
estate -made representations to a creditor that a 

claim need not be filed. 

These corr 

the result 

DATED 

'ections do not affect the outcome of the case and 

remains the 

r* this pHday 

same.