NO. 91-146 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

RONALD and NAN1 LINDER, Husband and Wife, 

Plaintiffs and Respondents, 

-vsMISSOULA COUNTY, a governmental entity, 

Defendant and Appellant, 

and 

6' 

CLtlil'~ C' SUPiif&~E COURT 

.L,d -J,*&h MISSOULA COUNTY, a governmental entity, 

S7'ATE OF lUONTApJA 

Third-party Plaintiff and Appellant, 

-vsSTATE OF MONTANA, DEPARTMENT OF HEALTH 

AND ENVIRONMENTAL SCIENCES, 

Third-party Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the county of Missoula, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sarah M. Power; Gough, Shanahan, Johnson & Waterman, 

Helena, Montana. 

For Respondents: 

Chris D. Tweeten; Hughes, Kellner, Sullivan & Alke, 

Helena, Montana. 

Filed: 

Heard: October 23, 1991 

Submitted: November 21, 1991 

Decided: January 14, 1992 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from an Order of the Fourth Judicial 

District Court, Missoula County, Montana wherein summary judgment 

was granted to the State in a negligence claim surrounding an 

outbreak of tuberculosis in Missoula County. Missoula County urges 

reversal, since a previous action arising from the same outbreak 

incident resulted in an opposite ruling at the district court 

level. We affirm in part and reverse in part. 

We address the following dispositive issues: 

I. Whether the State's summary judgment motion on the 

contribution and actionable duty issues is barred by the 

doctrine of collateral estoppel when, in the context of 

a third-party action, a dismissal with prejudice is 

entered into as a result of a release and settlement 

agreement that involved the same issues? 

11. Does the running of the statute of limitations on an 

underlying action by plaintiff bar the County's claim for 

contribution against the State? 

In 1979, Georgia Katie Chamberlain, a tubercular, moved to 

Missoula County from out of state. An outbreak of tuberculosis was 

later traced to Mrs. Chamberlain in Missoula County. The Montana 

Department of Health and Environmental Sciences and Missoula CityCounty Health Department monitored her condition. In 1983, 

numerous individuals in Missoula County, including Nani Linder, 

reacted positively to a tuberculosis test. In 1986, various 

individuals filed suit against Missoula County (County) alleging 

negligence in monitoring Mrs. Chamberlain's condition. These suits 

can be grouped as follows: 

1) Hardin v. Missoula County (Docket No. 64724) 

2) Linder et al. v. Missoula County (Docket No. 64030) 

(included were plaintiffs "Heavner") : and 

2 
3) Various unfiled claims. 

The County filed a motion to dismiss in July of 1986 which was 

denied. The County, in August of 1986, then filed a third-party 

claim against the State of Montana (State) seeking contribution in 

both the Hardin and Linder actions. 

In November 1988, Judge Wheelis denied the State's motion for 

summary judgment in the Hardin case and granted Missoula County's 

cross-motion for partial summary judgment on the existence of a 

duty of care on the part of the State. This Court denied the 

State's petition for supervisory control. After Judge Wheelis' 

decision in the Hardin case, all but the Linder claim settled via 

a "settlement and release agreement" that specifically excepted the 

Linder claim. Accordingly, appropriate dismissals with prejudice 

were filed. 

Later, the State filed a motion for summary judgment with 

regard to the Linder case and Missoula County filed a motion for 

partial summary judgment. The issues raised in the motions were 

almost identical to those which the State unsuccessfully argued in 

the Hardin action. On November 5, 1990, the District Court (Hon. 

Leif Erickson) granted the State's motion while denying Missoula 

County's and Missoula County appeals. 

IsSue I. COLLATERAL ESTOPPEL 

We previously stated that: 

Collateral estoppel is a form of res judicata. 

Quite simply, the doctrine "precludes relitigation of 

issues actually litigated and determined in a prior 

suit." Lawlor v. National Screen Service (1955), 349 U.S. 

3 
322, 75 S.Ct. 865, 99 L.Ed 1122. It differs from res 

judicata, in that res judicata bars the same parties from 

relitigating the same cause of action, while collateral 

estoppel bars the same parties, or their privies, from 

relitigating issues which have been decided with respect 

to a different cause of action. Brault v. Smith (1984), 

209 Mont. 21, 679 P.2d 236. 

The doctrine has three elements: 

1. The issue has been decided in a prior adjudication 

and is identical to the one presented. 

2. A final judgment on the merits was issued. 

3. The party against whom the plea is asserted was a 

party or privity to the party in the prior adjudication. 

Smith v. Schweigert (1990), 241 Mont. 54, 58, 785 ~.2d 195, 197. 

To determine whether collateral estoppel is proper in the case 

at bar, we focus on element number two. The term "final judgment" 

has been interpreted in many and varying ways. What constitutes a 

final judgment is not always clear. 

Under collateral estoppel, once an issue is actually and 

necessarily determined by a court of competent 

jurisdiction, that determination is conclusive in 

subsequent suits based on a different cause of action 

involving a party to the prior litigation. 

Montana v. United States (1979), 440 U.S. 147, 154, 99 S.Ct 970, 

973, 59 L.Ed.2d 210, 217. 

In this case all but the Linders signed a "Settlement and 

Release Agreement." Such a settlement is in the family of "consent 

judgments" and indicates that the parties chose to remove the 

action from the court arena. We previously stated that "the 

meaning of the consent judgment is to be gathered from the terms of 

the contract and the judgment should not be extended beyond the 

clear import of the terms." First Bank Missoula v. District Court 

4 
(1987), 226 Mont. 515, 523, 737 P.2d 1132, 1137. Accordingly, we 

look to the agreement in this case for guidance and find that the 

"Settlement and Release Agreementtt specifically and explicitly 

excluded the Linder claim as follows: 

7. The State and County . . . have negotiated an 

agreement settling all claims which have arisen or may 

arise between the State and the County from the subject 

matter described herein, with the sole and exclusive 

exception of the claims arising from the claims asserted 

against the County by Ronald and Nani Linder. 

8. The State and County agree and finally 

compromise and settle all claims available to the County 

against the State arising from . . . contact of any kind, 

direct or indirect, with Georgia Katie Chamberlain, 

saving and excepting only the claims filed in Missoula 

County Docket 64030 on behalf of Ronald and Nani Linder. ... 

... 

11. The County acknowledges that settlement of the 

claims settled herein shall not be construed, in the 

context of the claims of Ronald and Nani Linder or in any 

other context, as an admission of liability on the part 

of the State, and that the State expressly denies 

liability for the claims of Ronald and Nani Linder. . . . 

This evidence clearly indicates a lack of intent to include the 

Linders in the settlement. Nor do we find intent to foster any 

issue preclusion. On the contrary, looking at the settlement 

document set forth above, it is evident that the parties did not 

intend to create any finality with regard to the issues as they 

might arise in the Linder claim. Essentially, two groups of 

plaintiffs filed suit separately. All settled prior to trial save 

one, Nani Linder. It is obvious that the agreement lacks any issue 

preclusive intent, and none can be inferred. 

This matter entails addressing the question of whether a 

5 
consent judgment constitutes a final judgment on the merits by a 

court of competent jurisdiction. If so, it may possibly serve a 

preclusive effect on the same issues. Ordinarily, a consent 

judgment approving a settlement does not give rise to collateral 

estoppel or issue preclusion. Avondale Shipyards, Inc. v. Insured 

Lloyd's (5th Cir. 1986), 786 F.2d 1265, 1272. The intent of the 

parties in the settlement agreement is a critical component of 

element number two. 

This accords with the view of a number of legal 

scholars, who treat the question of the extent, if any, 

of the finality created by a consent decree to be one of 

the intention of the parties. If they have in their 

compromise indicated clearly the intention that the 

decree to be entered shall not only terminate the 

litigation of claims but, also, determine finally certain 

issues, then their intention should be effectuated. 

Kaspar Wire Works, Inc. v. LECO Engineering & Mach. (5th Cir. 

1978), 575 F.2d 530, 539. 

A consent judgment is basically contractual in nature and its 

preclusive effects should be measured by the intent of the parties. 

A consent judgment is issue preclusive only if it is clear that the 

parties intended to give it that effect. Southern Pac. 

Communications Co. v. American Tel. & Tel. Co. (D.C. Cir. 1984)' 

740 F.2d 1011, 1021. 

Issue preclusion does not attach unless it is clearly 

shown that the parties intended that the issue be 

foreclosed in other litigation. . . In most 

circumstances, it is recognized that consent agreements 

ordinarily are intended to preclude any further 

litigation on the claim presented but are not intended to 

preclude further litigation on any of the issues 

presented. Thus consent iudments ordinarilv suooort 

claim Kreclusion but not issue oreclusion. 

Wright, Miller and Cooper, Federal Practice and Procedure: 

6 
Jurisdiction 9 4443, at 382-385 (1985) (emphasis added). 

With respect to element number three, we also point out that 

the parties in the Hardin and Linder suits are not identical. We 

acknowledge the existence of the County and State as common 

parties, but the plaintiffs, while having similar injuries, are not 

the same, nor are they privies of one another. 

Today, we enunciate a rule that, generally, consent agreements 

do not have an issue preclusive effect on future litigants, unless 

that is the intent of the parties. The order of dismissal in 

Hardin was a consent judgment based on a settlement agreement which 

specifically excluded the Linders. Since the agreement lacked 

evidence of an intent to preclude future litigation on the issues, 

the requisite elements of collateral estoppel are not present. 

Therefore, we conclude that the application of the doctrine of 

collateral estoppel is improper in the case at bar. Accordingly, 

we affirm the District Court on this issue. 

Issue 11. STATUTE OF LIMITATIONS 

The State urges that since the statute of limitations has run 

on the Linders' claim against the State under 9 27-1-703, MCA, the 

State is "a party against whom recovery is not allowed" prohibiting 

the County's contribution claim. We disagree. 

The State relies on our opinion of State ex rel. Deere & Co. 

v. District Court (1986), 224 Mont. 384, 730 P.2d 396. Deere is 

not on point and distinguishable from the case at bar in several 

respects. Deere involved two defendants, Deere and Wade's Backhoe. 

7 
Prior to trial, Deere settled for $25,000 and Wade's Backhoe tried 

to join Deere under a contribution theory which we disallowed. We 

said that Wade's Backhoe could not successfully join Deere because, 

under 5 27-1-703, MCA, Deere was not a party against whom recovery 

was possible, due to Deere's settlement with the plaintiff. 

Settlement is a way for a defendant to eliminate future liability. 

In the case at bar the facts are somewhat similar as to the 

involvement of a plaintiff and two potential defendants. However, 

the similarity ends here even though the plaintiffs initiated suit 

solely against the County and later the County sought to join the 

State via contribution. In the instant case, the plaintiffs 

settled with neither party; this is a stark difference from the 

facts of Deere. Clearly, this difference makes the case at bar 

distinguishable from Deere and the cases that follow it. (See 

Sprinkle v. B.N. Railroad (1989), 236 Mont. 383, 769 P.2d 1261.) 

We conclude that the instant case does not fall within the 

purview of the statutory language of 3 27-1-703, MCA, and therefore 

the County could conceivably have a contribution action against the 

State. Accordingly, we move on to the statute of limitations issue 

specifically. 

The State asserts that since the statute of limitations has 

run on the plaintiffs' original claim, the County is barred by the 

underlying statute of limitations and cannot initiate a 

contribution cause of action to join the State. This is a case of 

first impression in Montana. 

A statute of limitations is meant to provide a reasonable 

8 
period of time in whjch wronged parties can i.ni.tiate suit and 

obtain redress. Such time frame also allows defendants to rest 

easy after the passage of a requisite period of time, so as not to 

keep causes of action forever lurking in the distance. The time 

period specified by a statute of limitations seeks to balance the 

interests of both parties. 

We carefully consider the two pathways possible on the statute 

of limitations issue. The State asserts that the only reasonable 

choice in the case at bar is to adopt the statute of limitations of 

the underlying action, thereby barring the County's contribution 

claim against the State. On the other hand, if such a position is 

taken, the County accurately points out that full redress will be 

denied to wronged parties especially when potential defendants are 

not easily identified, or when e.xistj.ng factual circumstances later 

reveal that a new unjoi.ned party may be partially at fault. Here 

an existing defendant should not be prevented from obtaining 

contribution from another non-settling party. 

In addressing this issue, we carefully assess and balance the 

interests of both parties to arrive at a workable but equitable 

general rule of law. In a situation such as the case at bar, we 

conclude that an emphasis must be placed on the opportunity for 

full redress from appropriate parties in keeping with the spirit of 

Montana's stance on comparative negligence. 

Idaho previously addressed this issue in Schiess v. Bates 

(Idaho 1984), 693 P.2d 440. In Schiess, a wrongful death action, 

the plaintiff's spouse and one of her children died in a boating 

9 
incident which the defendant survived. The plaintiff filed suit on 

behalf of her surviving children which alleged the defendant’s 

negligence. The defendant denied negligence and claimed 

contributory negligence on the part of plaintiff’s decedent spouse. 

Plaintiff argued that the defendant’s contributory negligence claim 

was barred by Idaho’s statute of limitations for probate. The 

Idaho court disagreed and set forth a general rule. 

The rule, recognized in nearly all jurisdictions, 

including Idaho, is that the cause of action for 

contribution or indemnity is distinct fromthe underlying 

cause of action, and the time from which the statute of 

limitations for such a cause of action begins to run is 

when the underlying claim, judgment, or settlement is 

paid or discharged. 

Schiess, 693 P.2d at 442; citing May Trucking Co. v. International 

Harvester Co. (Idaho 1975), 543 P.2d 1159, 1162. In Schiess, since 

there was no underlying judgment, the claim for indemnity or 

contribution had not yet arisen, and therefore could not yet be 

barred by any statute of limitations. 

While the statute of limitations addressed in Schiess is that 

of probate, we see a direct analogy and conclude that the general 

rule of law enunciated by the Idaho Supreme Court is appropriate 

for Montana. We note that our reasoning today is in harmony with 

our opinion in St. Paul Fire & Marine Co. v. Thompson (1969), 152 

Mont. 396, 451 P.2d 98, even though St. Paul dealt with an 

indemnity issue rather than a contribution claim. Though 

contribution is controlled by statute in Montana, St. Paul is still 

helpful and consistent with the position we take today. In St. 

-I Paul we stated that “the right of indemnity does not arise until 

10 
the obligation arises . . . the absolute right does not arise until 

payment has been made." St. Paul, 152 Mont. at 403, 451 P.2d at 

102. 

Applying the general rule to the case at bar, the County's 

contribution claim against the State is not barred by the 

underlying statute of limitations. The contribution claim is a 

distinct claim and does not arise until judgment or settlement is 

paid or discharged. Since the cause of action has not yet arisen 

it cannot be barred by the statute of limitations. Accordingly, we 

reverse the District Court on this issue. 

Affirmed in part and reversed in part. 

v We concur: 

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January 14, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Sarah M. Power 

GOUGH, SWAHAN, JOHNSON & WATERMAN 

P.O. Box 1715 

Helena, MT 59624-1715 

William A. Rossbach 

ROSSBACH & WHISTON 

P.O. Box 8988 

Missoula, MT 59807-8988 

Chris Tweeten 

HUGHES, KELLNER, SULLIVAN & ALKE 

P.O. Box 1166 

Helena, MT 59624 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF ,. MONTANA A 

BY 

Deputy[