NO. 86-288

IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

MICHAEL N

# . SEVALSTAD

### , Plaintiff,-vsJOHN GLAUS, Defendant,Third-Party Plaintiff andAppellant,-vsLESTER NEIFERT, Third-party Defendantand Respondent.

APPEAL FROM: TheDistrict Court of theNinth Judicial District, Inand for the County of Toole, The Honorable R.D. McPhillips,Judgepresidina.

COUNSEL OF RECORD:

ForAppellant: 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, 1987Mr. 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 arepresented forour 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 judgmentbe 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. Sevalstadwas ridingwith John Simonichand 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,Glaustestified that Sevalstad's vehicle was heavily loaded, its headlights were shiningupward,rather than illuminatingthehighway. At the time of the accident, Glaus was driving between sixty and sixty-five milesper hour. On October 7, 1983,respondent Neifertwas 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 flatout [ran]right in frontofme, and I hit thedeer,and I hithim on thedriver's side cornerand he flew back somewhere, and I just went on and stopped and got out, and Iwent 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 tohispickup and observed thathis 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 theMontana 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 tenmiles southof Shelby. Glaus testified that ashe 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. Thevehicle overturned in the right ditch and Sevalstadwas seriously injured. Sevalstad claims Glaus's negligence caused his injuries. Following the October 7, 1983, accident, Glaus was chargedwith drivingwhile under the influence. Glauspleaded 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 grantedNeifert'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 respondentNeifert. Two issues arepresented 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 amotion 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 standardof review iswhether the District Courtproperly held there isno genuine issue ofmaterial fact and therefore the moving party is entitled to judgment as a matter of law. Rule 56(c)

## ,M.R.Civ.P. Thepartymoving for summary judgmenthas theburden of showing the absence of any genuine issue of material fact, which applicable principles of law entitlehim 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),169Mont. 447, 548 P.2d 613, 615.In the case at bar, respondentNeifert,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 roadwaybehind hisvehicle. 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 tohis 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 ofhis accident. Respondent Neifert, the movant, made a showing that there is no genuine issue ofmaterial fact. Neifert was the sole witness to the accident. Circumstantial evidence supportsNeifert'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 opposingparty's facts must be material and of a substantialnature, 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 ofmaterial fact. Secondly,we hold the DistrictCourt properly found that respondent Neifert did not breach a legal duty owed to appellant Glaus. 

### "[A]ctionable negligence arises only from thebreach ofa legalduty. [Citingcases.] 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 supporta finding of abreach 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 judgmentbe affirmed? Sevalstad originally filedhis 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 becamemoot. Prior to Deere, we held that where concurrent tortfeasors axe affirmatively negligent, there was no right of contributionor 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 tortfeasorwho settles with the claimant before judgment on the claim is entered in

a district court isnot subject to claims for contribution or indemnity from the nonsettling joint tortfeasors againstwhom 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 broughtby Sevalstad. Affirmed.We concur: