NO. 86-288 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

MICHAEL N . SEVALSTAD , 

Plaintiff, 

-vsJOHN GLAUS, 

Defendant, Third-Party Plaintiff 

and Appellant, 

-vsLESTER NEIFERT, 

Third-party Defendant and Respondent. 

APPEAL FROM: The District Court of the Ninth Judicial District, 

In and for the County of Toole, 

The Honorable R.D. McPhillips, Judge presidina. 

COUNSEL OF RECORD: 

For Appellant: 

Crowley, Haughey, Hanson, Toole & Dietrich; Donald 

L. Harris, Billings, Montana 

For Respondent: 

Jardine, Stephenson, Blewett & Weaver; William D. 

Jacohsen, Great Falls, Montana 

MA-${ 2 

Filed: 

1987 

Submitted on Briefs: Dec. 11, 1986 

Decided: May 26, 1987 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

John Glaus appeals an order from the Ninth Judicial 

District, Toole County, granting respondent Lester Neifert's 

motion for summary judgment. We affirm. 

Two issues are presented for our review: 

1. Did the District Court err when it granted 

Neifert's motion for summary judgment? 

2. Does State ex rel. Deere v. District Court (Mont. 

1986), 730 P.2d 396, 43 St.Rep. 2270, require that summary 

judgment be affirmed? 

Michael N. Sevalstad was injured on October 7, 1983, 

when his 1978 Chevrolet Suburban, in which he was a passenger, was involved in an automobile roll-over on Interstate 

15, approximately ten miles south of Shelby, Montana. 

Sevalstad was riding with John Simonich and the appellant and 

driver, John Glaus. The three men were traveling to Sunburst, Montana, from Butte, in anticipation of goose hunting 

on October 8, 1983. Glaus stated, during deposition, that he 

had consumed at least eight beers preceding the incident. 

Glaus also stated Sevalstad fell asleep approximately one 

hour before the accident. Additionally, Glaus testified that 

Sevalstad's vehicle was heavily loaded, its headlights were 

shining upward, rather than illuminating the highway. At the 

time of the accident, Glaus was driving between sixty and 

sixty-five miles per hour. 

On October 7, 1983, respondent Neifert was also traveling north on Interstate 15. Neifert testified that at approximately 11:OO p.m., he hit a "rather large deer" which 

ran in front of his vehicle. Neifert was approximately two 

miles south of the Marias River or nine miles from Shelby 

when, ". . . a deer just flat out [ran] right in front of me, 

and I hit the deer, and I hit him on the driver's side corner 
and he flew back somewhere, and I just went on and stopped 

and got out, and I went back to look for the deer and didn't 

find him." Neifert stated he was driving fifty-five miles 

per hour at the time of the accident. 

After striking the deer, Neifert stopped, turned on his 

flashing lights, and searched the area behind his truck for 

approximately ten minutes. Although he found a piece of his 

truck's grill, Neifert did not find a deer on the Interstate. 

Neifert returned to his pickup and observed that his radiator 

was leaking badly. While he assessed the damaged vehicle, 

Neifert noticed a vehicle approaching from the south. Respondent stated the vehicle moved into the left lane and 

passed the accident scene. Although Neifert testified he 

watched the highway illuminated by the oncoming vehicle's 

lights, he did not observe an obstruction on the interstate. 

Neifert proceeded to Shelby to repair his vehicle and to 

contact the Montana Highway Patrol. 

A patrolman was dispatched from Conrad to investigate 

Neifert's accident. While en route on Interstate 15, the 

patrolman found appellant Glaus's overturned vehicle approximately ten miles south of Shelby. Glaus testified that as he 

drove toward the Marias River he came upon a deer carcass 

lying near the centerline of the northbound lane. Glaus 

stated he did not see the carcass until it was "twenty to 

thirty feet away." Glaus then turned sharply to the right, 

back to the left, and finally back to the right. The vehicle overturned in the right ditch and Sevalstad was seriously 

injured. Sevalstad claims Glaus's negligence caused his 

in juries. 

Following the October 7, 1983, accident, Glaus was 

charged with driving while under the influence. Glaus pleaded guilty to careless driving in violation of S 61-8-302, 

MCA . 
Sevalstad brought a complaint for negligence against 

Glaus and Neifert on January 3, 1985. Glaus subsequently 

filed a cross-claim for contribution against Neifert. On 

October 21, 1985, Sevalstad dismissed with prejudice his 

complaint against Neifert . Neifert then moved for summary 

judgment with respect to Glaus's cross-claim. The District 

Court granted Neifert's motion for summary judgment. 

Following a jury trial in February 1986, the jury found 

that Glaus acted negligently and was the proximate cause of 

Sevalstad's injuries. Sevalstad was awarded damages of 

$325,000. Glaus now appeals the District Court's order 

granting summary judgment to respondent Neifert. 

Two issues are presented for our review. 

Issue 1 

Did the District Court err when it granted respondent 

Neifert's motion for summary judgment? 

The standard that an appellate court applies in reviewing a grant or denial of a motion for summary judgment is the 

same as that utilized by the District Court. Kronen v. 

Richter (Mont. 1984), 683 P.2d 1315, 1317, 41 St.Rep. 1312. 

The standard of review is whether the District Court properly 

held there is no genuine issue of material fact and therefore 

the moving party is entitled to judgment as a matter of law. 

Rule 56 (c) , M.R.Civ.P. 

The party moving for summary judgment has the burden of 

showing the absence of any genuine issue of material fact, 

which applicable principles of law entitle him to judgment as 

a matter of law. Rennick v. Hoover (1980), 186 Mont. 167, 

606 P.2d 1079, 1080-1081. The moving party must make a 

showing that excludes any real doubt as to the existence of 

any genuine issue of material fact. Harland v. Anderson 

(1976), 169 Mont. 447, 548 P.2d 613, 615. 
In the case at bar, respondent Neifert, by deposition, 

testified he was the sole witness to the deer-automobile 

accident. Neifert stated the deer darted in front of his 

vehicle, at night on Interstate 15, and the two collided. 

Neifert stopped and searched the roadway behind his vehicle. 

After finding a piece from his vehicle grill, Neifert then 

walked another fifty feet past the point of impact searching 

for the deer carcass. 

Neifert retreated to his vehicle and attempted to "flag 

down" or stop a passing motorist. Neifert testified the 

oncoming automobile headlights did not reveal a deer carcass 

on the interstate. Further, Neifert testified the oncoming 

vehicle traveled safely past the accident scene. 

Neifert, upon realizing that his radiator was leaking 

badly, left the accident scene and proceeded to Shelby. 

Neifert then contacted the highway patrol and advised the 

patrol of his accident. 

Respondent Neifert, the movant, made a showing that 

there is no genuine issue of material fact. Neifert was the 

sole witness to the accident. Circumstantial evidence supports Neifert's testimony. Appellant Glaus does not question 

Neifert's version of the facts. However, Glaus contends that 

Neifert should have searched more vigorously. Glaus also 

contends Neifert should have searched with different means, 

with his vehicle lights or his dog, to locate the deer carcass. Secondly, appellant Glaus contends Neifert's foot 

search was cursory and that he should have remained at the 

accident scene, notwithstanding his vehicle's leaking 

radiator. 

Once the moving party has established that no genuine 

issue of material fact exists, the burden shifts to the 

opposing party to raise an issue of fact. Krone v. McCann 

(1982), 196 Mont. 260, 638 P.2d 397, 399. "The opposing 
party's facts must be material and of a substantial nature, 

not fanciful, frivolous, gauzy or merely suspicious." 

Westlake v. Osborne (Mont. 1986), 713 P.2d 548, 550, 43 

St.Rep. 200, citing Silloway v. Jorgenson (1965), 146 Mont. 

307, 310, 406 P.2d 167. Implications based on appellant's 

allegations are not enough to sustain a motion for summary 

judgment. Cheyenne Western Bank v. Young (1978), 179 Mont. 

492, 587 P.2d 401, 404. 

We hold that appellant Glaus failed to raise a genuine 

issue of material fact. Secondly, we hold the District Court 

properly found that respondent Neifert did not breach a legal 

duty owed to appellant Glaus. " [A] ctionable negligence 

arises only from the breach of a legal duty. [Citing cases.] 

Therefore, in order for there to be a genuine issue of a 

material fact in a negligence case, there must be a duty 

imposed upon the defendant and allegations, if proven, that 

would support a finding of a breach of the duty." Rennick v. 

Hoover (1980), 186 Mont. 167, 606 P.2d 1079, 1081. Respondent Neifert did not breach a legal duty owed to appellant 

Glaus. 

Issue 2 

Does State ex rel. Deere v. District Court (Mont. 

1986), 730 P.2d 396, 43 St.Rep. 2270, require that summary 

judgment be affirmed? 

Sevalstad originally filed his complaint against appellant Glaus and respondent Neifert. Subsequently, Glaus 

brought a cross-claim against Neifert for contribution. 

Sevalstad then dismissed, with prejudice, his complaint 

against Neifert. In doing so, Sevalstad relinquished his 

right to recover from Neifert. Rule 41(a), M.R.Civ.P. 
Respondent Neifert contends that Deere is controlling 

and requires that summary judgment be affirmed. Neifert 

contends that when Sevalstad dismissed, with prejudice, his 

complaint against Neifert, Glaus's cross-claim against 

Neifert became moot. 

Prior to Deere, we held that where concurrent 

tortfeasors axe affirmatively negligent, there was no right 

of contribution or indemnity from one to the other for damages recovered by a plaintiff, except as may be allowed in 

comparative negligence cases under 5 27-1-703, MCA. See, 

Consolidated Freightways Corp. v. Osier (1979), 185 Mont. 

439, 605 P.2d 107; Panasuck v. Seaton (D. Mont. 19651, 277 

F.Supp. 979. 

In Deere we held that "a joint tortfeasor who settles 

with the claimant before judgment on the claim is entered in 

a district court is not subject to claims for contribution or 

indemnity from the nonsettling joint tortfeasors against whom 

judgment may be rendered." Deere, 730 P.2d 396, 402, 43 

St.Rep. 2270, 2277. Deere is controlling, notwithstanding 

5 27-1-703, MCA, which gives a joint tortfeasor the right to 

bring in other tortfeasors in order to insure contribution. 

Accordingly, Glaus has no right of contribution against 

Neifert, since Neifert was dismissed with prejudice from the 

action brought by Sevalstad. 

Affirmed. 
We concur: