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 FirstJudicial 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. ofAdministration, Helena, Montana (argued) - Carter N. Picotte, Helena,Montana-

## ~t-~k?-(1&"." Robert Cummins, argued, Helena, Montana

Submitted: September 12, 1980 Decided: 

### ~FI:19 

### 1980 

# OEC43f980 Filed: -

### Mr. Justice Gene B. Daly delivered the Opinion of the Court. Plaintiff-appellant SharonMackin brought this tort action against the State in the Lewis and Clark County District Court on behalf of her minor sonMichael Timmer. The trial court granted defendant's motion for partial summary judgmentbased 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, onAugust 15, 1978. The fieldwas used as a small arms firing range by the Montana National Guard. While playing there,Michael allegedly picked up a practice grenadewhich 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 complaintwas filed by Sharon Mackin on behalf of her son against the State of Montana on February 27, 1979. The plaintiff's amended statementof 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 futuremed. expenses 1,000.00

2. Loss of earning capacity $5,000.00 3. 

### General damage--pain & 

### suffering and disfigurement $93,000.00 The Statepleaded 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" ($93,000under the amended claim) constitutenoneconomic damages since no permanent disabling injuries resulted from the accident. Theplaintiff 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 thenmoved for partial summary judgmentwith 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: "Limitationon 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 $1million 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, inwhich case the insurermay not claim the benefits of the limitation specificallywaived." (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 1972Mont. 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 specificallyprovided by lawby 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, isprecluded from raising the defense of sovereign immunity. The State responds that the provisions of the 1972Mont. Const., Art. 1 Sl8, as amended, do not restrict the legislature from imposing such conditionsor 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 adoptedArt. 11, 

### 518,which abolished governmental immunity from -4-suit for injury to a person or property without qualification. That section of Art. I1 was amended by the voters inthe general election of 1974 by adding tothe provision "except as may be specificallyprovided by law by a 2/3

. vote of each house of the legislature." We note parenthetically that the proper termtodescribe 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 allother local government entities", it is improper todescribe their immunity as "sovereign." Only the statehas "sovereign immunity", which is as old as the common law, and thought tobe inherent inthe nature of sovereignty. See Nevada v. Hall (1979),440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416, reh.den. 441U.S. 917. Governmental, ormunicipal 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 istobe noted with approval that section 2-9-104, the sectionwith which we areconcerned 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 injuxtaposition tothe provisions of 1972 Mont. Const., Art. 11, 818 (asamended), thisquestion is immediately raised: Did the legislature inadopting section 2-9-104 reinstate a limited governmental immunity, or did it merely limitthe remedy recoverable against a governmental unit? The District Court recognized the nuance contained inthat question. In determining that section 2-9-104 was constitutionally amenable under 1972 Mont. Const., Art. 11, S18 (asamended), the District Court said this: -5-

# ".

. . I can only conclude that the legislature subsequently has the samepower and authority to reinstate immunitywith whatever terms and conditions regarding the amount and types of damages that ithad when itwaived the State's immunityby 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 inMontana for many years, and the imposition of statutory damage limits pursuant to Article 11, section 18,as amended. The fundamentalauthority 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 accordancewith sections 2-9-101 and 2-9-104, MCA, constitute a valid, constitutional reinstatementof 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

(whethercalledwaiver 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 theprovisions 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 "petitionof plaintiff following a final judgment". We find itplainly the legislative scheme under section 2-9- 104(2), that a tort claim against a governing body of this statemay 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), 132Mont. 77, 314 P.2d 866. Neither statutory nor constitutional constructionby

US 

### should lead to absurd results if reasonable construction will avoid it. State v. School DistrictNo. 1 of Fergus County (19601,136 Mont. 453, 348 P.2d 797, 78A.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 notmake 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 soughtby petition from the governmental entity and by its grace, upon "petitionof plaintiff following a final judgment." In order to petition the governmental unit for the exercise of its grace, there must be a "plaintiff"and theremust be a "final judgment." Itmay 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 amethod 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 governmentalbody can be made. Unless a plaintiff is allowed toproceed to final judgment on all claimed damages,where a governmental entity is a defendant, the legislativepurpose 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 -7-

### is nothing for a court to construe. Clark v. Hensel Phelps Const. Co. (1977), 172Mont. 8, 

### 560 P.2d 515; Security Bank and Trust Company v. Connors (1976),170Mont. 59, 550 P.2d 1313.Theprosecution 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 noneconomicdamages. By 

### the use of special interrogatories, the jurywill 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 inwhich the economic damages might exceed $300,000. Ifwe
were to affirm the District Court, how in a proper casewould 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 thatwe can envision is one where a governmentalentityis sued as a joint tortfeasorwith one or more defendants which are not governmental entities. In determining comparative negligence in such a situation, it



## -8-willbe fareasier for the DistrictCourt toallow evidence of alldamages of whatever kind ornature, and if the verdict should require it, thereafter toapply the limitations of governmental liability found insection 2-9-104, MCA. It is instructive toremember that: "Itiswellestablished that by consenting to be sued the state does nothing more than waive its immunity from action. Itdoes not thereby concede its liabilityin favor of the claimant orcreate a cause of action inhis favor which didnot theretofore exist. Thus, liabilityof the statefor tortcannot be predicated upon the fact that the statehas entered its general statutory consent tobe sued, directing the manner inwhich suitsmay be brought by those having claims against the state. Neither does a special statutepermitting suitson particular claims concede the justice of the claims. Statutory consent tobe sued merely gives a remedy toenforce a liability and submits the state to the jurisdiction of the court, subject toits right tointerpose any lawful defense." 57 Am.Jur.2d 81, Municipal Etc. Tort Liability, 872. And again: "Consent of the state tobe sued upon claims against it by privatepersons is generally given expressly by statutory enactment directing inwhat manner and inwhat court such suitsmay be brought; the general purpose and effectof such statutes, as commonly understood, istorefer tothe judiciary the settlement of the questions of lawand factinvolved inthe claims, and the determination, inthe form of a judgment, of the rights of theparties

# ..." 72 Am.Jur.2d 511, States Etc., S120. Wedetermine therefore, that the effectof section 2-9- 104, MCA, is tolimitthe remedy available against the state

or governmental entityafter

### its liabilityhas been determined by finaljudgment, except such furtherpayment as the governmental entitymay by grace provide. Therefore the summary judgment of the DistrictCourt against types of damages not authorized in section 2-9-104, MCA, prior to finaljudgment ispremature. This does not mean that the District Court would not have power togrant a summary judgment where a governmental entity is a defendant on issuesnot 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 remandedwith 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 VMr. 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 thisjudgment 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 expresslyprovide that the District Court "may direct the entryof a final judgment



### as to one or more but fewer than 

### allof 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 consistentlyheld that it willnot review

or determine on appeal issues which 

### were not raised inthe District Court. Mont. Ass'n. of Underwriters. v. State,etc. (1977), 172Mont. 211, 563 P.2d 577; Spencer v. Robertson (1968), 151Mont. 507, 445 P.2d 48; Clark v. Worrall (1965), 146 Mont. 374, 406 P.2d 822; StateHighway Commission v. Yost Farm Company (1963), 142Mont. 239, 384 P.2d 277. Yethere the majority have decided this case on an issue not raised, briefed

orargued 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 statuteprovides inpertinent part: "(1) Neither the 

### state

# . .

# . nor any

# .

# .

. political subdivision of the state is liable in

### tort action for: 

### "(a)noneconomic damages; orIf the Statehas no liability for noneconomic damages, how can a finaljudgment 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 statutorylimitation on the State's liability and entered the only finaljudgment 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 forpayment thereof 

### as a matter of grace. Inmy opinion this is a tortured construction of the statute. The relevant portion of the statutereads as follows: 

### "(2)The legislature

# ...may, inits sole

7-- discretion, authorize payments for noneconomic damages 

# .

# ..upon petition of plaintiff following a final judgment 

# . ..." Section 2-9-104(2), MCA. (Emphasis added.) Inmy view the quoted portion of the statuteplainly says that the legislature, in its sole discretion, may authorize such payments for noneconomic damages as it sees fitafter final judgment; it may deny any payment 

### at all, 

### or it may authorize payment in part and deny payment inpart, 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 leftfor the court to construe. Keller v. Smith (1976), 170Mont. 399, 553 P.2d 1002; Dunphy v. Anaconda Company, (1968), 151Mont. 76, 438 P.2d 660. Our function is simply 

### to declarewhat is contained in the statute, and neither insertwhat has been omitted nor omitwhat 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), 172Mont. 8, 560 P.2d 515; Harnrnill v. Young (1975), 168Mont. 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 statutebe interpreted to require a judicial determination of the amount of noneconomic damages in a final judgment? As I 

### see it, thiswould 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 noneconomicdamages forwhich the State 

### is not liable under the statute and include such items in 

### a finaljudgment before the plaintiff

can petition the legislature forpayment thereof. I believe thisCourt should determine the sole issue raised by the parties inthis appeal--the constitutionality of section 2-9-104, MCA.

Chief Justice