No. 80-36 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

SHARON MACKIN, Guardian ad Litem 

of MICHAEL TIMMER, a minor, 

Plaintiff and Appellant, 

-vsSTATE OF MONTANA, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Keller, Reynolds, Drake, Sternhagen & Johnson, 

Helena, Montana 

Keith Keller argued, Helena, Montana 

For Respondent: 

J. Michael Younq, Dept. of Administration, Helena, 

Montana (argued) - 

Carter N. Picotte, Helena, Montana- ~t-~k?-(1&"." 

Robert Cummins, argued, Helena, Montana 

Submitted: September 12, 1980 

Decided: ~FI: 1 9 1980 

OEC 4 3 f980 Filed: - 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff-appellant Sharon Mackin brought this tort 

action against the State in the Lewis and Clark County 

District Court on behalf of her minor son Michael Timmer. 

The trial court granted defendant's motion for partial 

summary judgment based upon section 2-9-104, MCA, dealing 

with sovereign immunity. The plaintiff appeals. 

Michael Timmer, plaintiff's 12-year-old son, and some 

friends were playing in an open field at Fort Harrison near 

Helena, Montana, on August 15, 1978. The field was used as 

a small arms firing range by the Montana National Guard. 

While playing there, Michael allegedly picked up a practice 

grenade which had failed to explode when fired from a 40 

millimeter grenade launcher. The grenade later exploded, 

injuring Michael's feet with shrapnel, burns and impaction 

of powder. 

A tort complaint was filed by Sharon Mackin on behalf 

of her son against the State of Montana on February 27, 

1979. The plaintiff's amended statement of the claim specifies 

the following damages: 

1. Special Damages 

Shodair Hospital $ 725.75 

Helena Radiological Assoc. 47.00 

Dale Johnson, M.D. 89.00 

Children's Clinic 104.00 

Estimated future med. expenses 1,000.00 

2. Loss of earning capacity $5,000.00 

3. General damage--pain & suffering 

and disfigurement $93,000.00 

The State pleaded several affirmative defenses. Its 

foW!l affirmative defense asserts that section 2-9-104, MCA, 

precludes recovery of noneconomic damages under the sovereign 
immunity doctrine. Under this affirmative defense, it was 

alleged that the claimed "general damages" ($93,000 under 

the amended claim) constitute noneconomic damages since no 

permanent disabling injuries resulted from the accident. 

The plaintiff moved for summary judgment on the issue 

of sovereign immunity on the grounds that section 2-9-104, 

MCA, is unconstitutional and that the State has waived its 

right to assert the defense. The State then moved for 

partial summary judgment with regard to plaintiff's claim 

for pain and suffering and disfigurement, contending that 

section 2-9-104, MCA, bars recovery. 

We set forth here in full, the provisions of section 2-9- 

104, MCA: 

"Limitation on governmental liability for 

damaaes in tort--setition for relief in excess 

of limits. (1) heither the state, acounty, 

municipality, taxing district, nor any other 

political subdivision - of the state is liable in 

tort action for: 

" (a) noneconomic damages; or 

"(b) economic damages suffered as a result of 

an act or omission of an officer, agent, or 

employee of that entity in excess of $300,000 

for each claimant and $1 million for each occurrence. 

"(2) The legislature or the governing body of a 

county, municipality, taxing district, or other 

political subdivision of the state may, in its 

sole discretion, authorize payments for noneconomic 

damages or economic damages in excess of the sum 

authorized in subsection (l)(b) of this section, or 

both, upon petition of plaintiff following a final 

judgment. No insureris liable for such no~economic 

damages or excess economic damages unless such insurer 

specifically agrees by written endorsement to provide 

coverage to the governmental agency involved in amounts 

in excess of the limitation stated in this section or 

specifically agrees to provide coverage for noneconomic 

damages, in which case the insurer may not claim the 

benefits of the limitation specifically waived." (Emphasis 

added. ) 

For the purposes of section 2-9-104, noneconomic damages 

and economic damages are defined in section 2-9-101(2), MCA. 

Plaintiff argued at the District Court hearing that the 
statute is unconstitutional under 1972 Mont. Const., Art. 11, 

618, as amended by the voters in 1974, and which now provides: 

"State subject -- to suit. The state, counties, 

cities, towns, and all other local governmental 

entitles shall have no immunity from suit for 

injury to a person or property, except as may 

be specifically provided by law by a 2/3 vote of 

each house of the legislature." 

The District Court filed a memorandum opinion and order 

on December 31, 1979. The order denied plaintiff's motion 

for summary judgment and granted the State's motion for 

partial summary judgment on plaintiff's claim for damages. 

The District Court also directed the entry of a final judgment 

in favor of the State against all claims for "noneconomic" 

damages. The court found that there were no just reasons 

for delay and certified its reasons therefore pursuant to 

Rule 54(b), M.R.Civ.P. As a result, the order is appealable 

within Rule 1, M.R.App.Civ.P., although the judgment encompasses 

fewer than all the claims. 

The plaintiff raises issues on appeal that section 2-9- 

104, MCA, is unconstitutional, that it is an invalid attempt to 

reinstate immunity, and that the State, by the adoption of 

section 2-9-201, et seq., MCA, providing for self insurance, 

is precluded from raising the defense of sovereign immunity. 

The State responds that the provisions of the 1972 Mont. 

Const., Art. 1 Sl8, as amended, do not restrict the legislature 

from imposing such conditions or limitations as are set out in 

section 2-9-104 (1). 

We do not reach the constitutional or other contentions 

raised by the parties in this case. It is clear from the 

provisions of section 2-9-104(2), that the entry in this 

case of a summary judgment against the plaintiff on certain 

of her claimed damages was premature. An analysis of the 

statute and its background is necessary in order to explain 

our reasons. 

In 1972, the members of the Montana Constitutional Convention 

adopted Art. 11, 518, which abolished governmental immunity from 

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suit for injury to a person or property without qualification. 

That section of Art. I1 was amended by the voters in the 

general election of 1974 by adding to the provision "except as 

may be specifically provided by law by a 2/3 . vote of each 

house of the legislature." 

We note parenthetically that the proper term to describe 

the immunity now provided in 1972 Mont. Const., Art. 11, 818, 

as amended, is "governmental immunity." Since the constitutional 

provision extends to "counties, cities, towns, and all other 

local government entities", it is improper to describe their 

immunity as "sovereign." Only the state has "sovereign immunity", 

which is as old as the common law, and thought to be inherent 

in the nature of sovereignty. See Nevada v. Hall (1979), 440 

U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416, reh.den. 441 U.S. 917. 

Governmental, or municipal immunity, derives from Russell v. 

The Men of Devon (17881, 2.Term.Rep. 667, 100 Eng.Bep. 359, and 

is therefore based on court-made law. See ort thing ton v. State 

(wyo. 1979), 598 P.2d 796. It is to be noted with approval that 

section 2-9-104, the section with which we are concerned here, 

speaks of "limitation on governmental liability" with no reference 

to the term "sovereign immunity." 

However, the reference in the caption of section 2-9-104, 

"limitation on governmental liability" sets the stage for our 

discussion here. When the provisions of section 2-9-104, are 

read in juxtaposition to the provisions of 1972 Mont. Const., 

Art. 11, 818 (as amended), this question is immediately raised: 

Did the legislature in adopting section 2-9-104 reinstate a 

limited governmental immunity, or did it merely limit the remedy 

recoverable against a governmental unit? 

The District Court recognized the nuance contained in that 

question. In determining that section 2-9-104 was constitutionally 

amenable under 1972 Mont. Const., Art. 11, S18 (as amended), the 

District Court said this: 

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". . . I can only conclude that the legislature 

subsequently has the same power and authority 

to reinstate immunity with whatever terms and 

conditions regarding the amount and types of 

damages that it had when it waived the State's 

immunity by legislation prior to 1973. The power 

to limit liability is the same, whether it is 

exercised by waiving or reinstating the State's 

immunities. Indeed, there is no valid distinction 

between the limited waiver of immunity up to the 

limits of liability insurance, which was the law 

in Montana for many years, and the imposition of 

statutory damage limits pursuant to Article 11, 

section 18, as amended. The fundamental authority 

of the legislature is identical in each instance 

and only the amounts are different. 

"Therefore, I conclude that the limitations on 

the amount and types of damages awardable against 

the State in accordance with sections 2-9-101 and 

2-9-104, MCA, constitute a valid, constitutional 

reinstatement of governmental immunity within the 

meaning of Article 11, section 18, Montana Constitution, as amended." 

Accepting arguendo the District Court's conclusion that the 

legislature could either reinstate total governmental immunity, 

or provide limited immunity against certain types of damages 

(whether called waiver or reinstatement), we come to the next 

question that logically follows from the District Court's determination: Did the District Court properly grant summary judgment 

against all but plaintiff's claimed economic damages in the light 

of the provisions of section 2-9-104, MCA? 

We call attention, now, to the language in section 2-9- 

104(2), MCA, to the effect that a governmental unit, in its 

sole discretion, may authorize payments for noneconomic 

damages or economic damages in excess of $300,000, or both, 

upon "petition of plaintiff following a final judgment". We 

find it plainly the legislative scheme under section 2-9- 

104(2), that a tort claim against a governing body of this 

state may proceed to final judgment on all claims for damages 

which the plaintiff may have, both for noneconomic and 

economic damages. After "final judgment" under section 2-9- 

104(2), the plaintiff may petition the governmental body 

for noneconomic damages, or for economic damages in excess 
Our duty in interpreting a statute is to give effect to 

the objects of the statute, to construe it so as to promote 

justice,and to give such construction to the statute as will 

preserve the constitutional rights of the parties. Yurkovich 

v. Industrial Accident Board (1957), 132 Mont. 77, 314 P.2d 

866. Neither statutory nor constitutional construction by 

US should lead to absurd results if reasonable construction 

will avoid it. State v. School District No. 1 of Fergus 

County (19601, 136 Mont. 453, 348 P.2d 797, 78 A.L.R.2d 

1012. Governmental units in Montana are not immune from 

suits for torts. Section 2-9-102, MCA. Section 2-9-104 

does not make a governmental unit of the State of Montana 

immune from suit. Rather, it limits the governmental 

liability to economic damages not in excess of $300,000. It 

then goes one step further and provides that other damages, 

or economic damages in excess of $300,000, may be sought by 

petition from the governmental entity and by its grace, upon 

"petition of plaintiff following a final judgment." In 

order to petition the governmental unit for the exercise of 

its grace, there must be a "plaintiff" and there must be a 

"final judgment." It may be argued that the plaintiff here 

has a final judgment against her for noneconomic damages, 

but that argument begs the question. Section 2-9-104, 

interpreted as we see it, provides a method for a plaintiff 

to obtain a determination in a judicial setting of damages 

beyond economic damages in the amount of $300,000 after which 

petition to the governmental body can be made. Unless a 

plaintiff is allowed to proceed to final judgment on all 

claimed damages, where a governmental entity is a defendant, 

the legislative purpose as set out in section 2-9-104(2), 

MCA, would be frustrated. 

Where the language of the statute is plain, unambiguous, 

direct and certain, the statute speaks for itself and there 

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is nothing for a court to construe. Clark v. Hensel Phelps 

Const. Co. (1977), 172 Mont. 8, 560 P.2d 515; Security Bank 

and Trust Company v. Connors (1976), 170 Mont. 59, 550 P.2d 

1313. 

The prosecution of a tort claim against a governmental 

entity, or a defense of the same, under this interpretation 

of section 2-9-104, will present no real problem or difficulty 

to reasonably adept counsel. In this case, in fact, the 

complaint was amended to set forth specifically the economic 

and noneconomic damages. By the use of special interrogatories, 

the jury will be instructed, if it finds for the plaintiff, 

to determine both economic and noneconomic damages. When 

these are entered in a final judgment, the amount of "governmental 

liability" can be determined. The amounts, if any, in 

excess of the governmental liability, under section 2-9-104, 

can be pursued at plaintiff's pleasure following a final 

judgment . 

We see no waste of judicial resources in so providing. 

Certainly the determination of damages in a judicial setting 

far outweighs the determination of an award by a governmental 

entity bound by no rules and bare of precedent. 

There are other reasons which lead us to interpret the 

statute as we do. We can envision any number of situations 

in which the economic damages might exceed $300,000. If we 

were to affirm the District Court, how in a proper case would 

the excess of economic damages over $300,000 be determined? 

Undoubtedly, an affirmance of the District Court would result 

in the refusal of any evidence of damages beyond that figure in 

future cases. 

Another situation that we can envision is one where a 

governmentalentity is sued as a joint tortfeasor with one or 

more defendants which are not governmental entities. In 

determining comparative negligence in such a situation, it 

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will be far easier for the District Court to allow evidence 

of all damages of whatever kind or nature, and if the verdict 

should require it, thereafter to apply the limitations of governmental liability found in section 2-9-104, MCA. It is instructive 

to remember that: 

"It is well established that by consenting to 

be sued the state does nothing more than waive 

its immunity from action. It does not thereby 

concede its liability in favor of the claimant 

or create a cause of action in his favor which 

did not theretofore exist. Thus, liability of 

the state for tort cannot be predicated upon the 

fact that the state has entered its general 

statutory consent to be sued, directing the 

manner in which suits may be brought by those 

having claims against the state. Neither does 

a special statute permitting suits on particular 

claims concede the justice of the claims. Statutory 

consent to be sued merely gives a remedy to enforce 

a liability and submits the state to the jurisdiction 

of the court, subject to its right to interpose any 

lawful defense." 57 Am.Jur.2d 81, Municipal Etc. 

Tort Liability, 872. 

And again: 

"Consent of the state to be sued upon claims against 

it by private persons is generally given expressly 

by statutory enactment directing in what manner and 

in what court such suits may be brought; the general 

purpose and effect of such statutes, as commonly 

understood, is to refer to the judiciary the settlement 

of the questions of law and fact involved in the claims, 

and the determination, in the form of a judgment, of 

the rights of the parties . . ." 72 Am.Jur.2d 511, 

States Etc., S120. 

We determine therefore, that the effect of section 2-9- 

104, MCA, is to limit the remedy available against the state 

or governmental entity after its liability has been determined 

by final judgment, except such further payment as the governmental 

entity may by grace provide. Therefore the summary judgment 

of the District Court against types of damages not authorized 

in section 2-9-104, MCA, prior to final judgment is premature. 

This does not mean that the District Court would not have 

power to grant a summary judgment where a governmental 

entity is a defendant on issues not encompassed in section 

2-9-104, MCA. 
We therefore do not reach the constitutional or other 

issues raised by the parties in this case as they are not 

properly before us at this time. 

Reversed and remanded with directions to set aside the 

summary judgment in favor of the State. The denial of 

summary judgment in favor of the plaintiff is affirmed 

without prejudice. 

n 

Justice 

We Concur: 

.............................. Chief Justice 

,/." / Justices V 
Mr. Chief Justice Frank I. Haswell, dissenting. 

I respectfully dissent. 

Here the District Court entered judgment denying 

plaintiff's claim for noneconomic damages, holding the statutory 

limitation constitutional. On appeal the majority have reversed 

this judgment as premature because a final judgment including 

noneconomic damages claimed by plaintiff was not entered. In my 

view this is error. 

The Montana Rules of Civil Procedure expressly provide 

that the District Court "may direct the entry of a final judgment 

as to one or more but fewer than all of the claims . . . upon an 

express determination that there is no just reason for delay and 

upon an express direction for the entry of judgment." Rule 

54(b), M.R.Civ.P. The District Court did this. This rendered 

the judgment appealable as a final judgment. Rule 1, 

M.R.App.Civ.P. 

The constitutionality of section 2-9-104, MCA, was the 

only issue raised, briefed, researched or argued in the District 

Court. This Court has consistently held that it will not review 

or determine on appeal issues which were not raised in the 

District Court. Mont. Ass'n. of Underwriters. v. State,etc. 

(1977), 172 Mont. 211, 563 P.2d 577; Spencer v. Robertson 

(1968), 151 Mont. 507, 445 P.2d 48; Clark v. Worrall (1965), 146 

Mont. 374, 406 P.2d 822; State Highway Commission v. Yost Farm 

Company (1963), 142 Mont. 239, 384 P.2d 277. Yet here the 

majority have decided this case on an issue not raised, briefed 

or argued by any party either in the District Court or upon 

appeal. 

Section 2-9-104, MCA, provides, among other things, that 

the State is not liable for noneconomic damages in a tort action 

such as we have here. The statute provides in pertinent part: 

"(1) Neither the state . . . nor any . . . political subdivision of the state is liable 

in tort action for: 

"(a) noneconomic damages; or 
If the State has no liability for noneconomic damages, how can a 

final judgment that includes noneconomic damages be entered 

against the State? 

There is only one way--by declaring the statute 

unconstitutional. But here the District Court declared the statute constitutional. In so doing, the District Court upheld the 

statutory limitation on the State's liability and entered the 

only final judgment it was empowered to enter under such 

circumstances. This placed the question of constitutionality of 

the statute squarely in issue in this appeal. 

The majority opinion avoids ruling on this issue by 

interpreting the statute to require a judicial determination of 

the amount of noneconomic damages as a condition precedent to 

plaintiff petitioning the legislature for payment thereof as a 

matter of grace. In my opinion this is a tortured construction 

of the statute. 

The relevant portion of the statute reads as follows: 

" (2) The legislature . . . may, 7-- in its sole 

discretion, authorize payments for noneconomic 

damages . . . upon petition of plaintiff 

following a final judgment . . . ." Section 

2-9-104(2), MCA. (Emphasis added.) 

In my view the quoted portion of the statute plainly says that 

the legislature, in its sole discretion, may authorize such 

payments for noneconomic damages as it sees fit af ter final 

judgment; it may deny any payment at all, or it may authorize 

payment in part and deny payment in part, or it may pay such 

damages in full as it alone may determine. Where the language of 

a statute is plain, unambiguous, direct and certain, the statute 

speaks for itself and there is nothing left for the court to 

construe. Keller v. Smith (1976), 170 Mont. 399, 553 P.2d 1002; 

Dunphy v. Anaconda Company, (1968), 151 Mont. 76, 438 P.2d 660. 

Our function is simply to declare what is contained in the 

statute, and neither insert what has been omitted nor omit what 

has been inserted. Section 1-2-101, MCA; Mont. Ass'n of Underwriters v. State, etc., supra; Clark v. Hensel Phelps Const. 

- 12 - 
Co. (1977), 172 Mont. 8, 560 P.2d 515; Harnrnill v. Young (1975), 

168 Mont. 81, 540 P.2d 971. 

Where the legislature has sole discretion over whether 

payment of noneconomic damages shall be authorized and the amount 

thereof, how can the statute be interpreted to require a judicial 

determination of the amount of noneconomic damages in a final 

judgment? As I see it, this would be at odds with legislative 

intent regarding determination thereof. No discernable purpose 

would be served thereby. The amount of noneconomic damages in a 

judgment is simply a lump sum commonly commingled with economic 

damages. The legislature is not bound by it and is perfectly 

capable of determining the amount of noneconomic damages it is 

willing to pay as a matter of grace rather than as a matter of 

liability. Additionally it is a waste of time, the taxpayers1 

money, and judicial resources to engage in such a meaningless 

exercise. The law does not require idle acts. Section 1-3-223, 

MCA. For these reasons I do not believe the legislature intended 

to empower the trial courts to adjudicate the amount of noneconomic damages for which the State is not liable under the statute 

and include such items in a final judgment before the plaintiff 

can petition the legislature for payment thereof. 

I believe this Court should determine the sole issue 

raised by the parties in this appeal--the constitutionality of 

section 2-9-104, MCA. 

Chief Justice