No. 80-35 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

EDMUND W. BEEDIE and 

TRUCK INSURANCE EXCHANGE, 

Plaintiffs and Appellants, 

-vsJOHN SHELLEY and MARTHA SHELLEY, 

Defendants and Respondents. 

Appeal from: The District Court of the Thirteenth Judicial 

District, In Yellowstone County, The Honorable 

Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellants: 

Lewis E. Brueggemann, Billings, Montana 

For Respondents: 

Hibbs, Sweeney, Colberg, Jensen and Koessler, 

Billings, Montana 

Submitted on Briefs: March 21, 1980 

Decided: MdY -- 6 - 7984 

Filed: &- 1: - 1J83 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

Plaintiffs Edmund Beedie and Truck Insurance Exchange 

brought this action in the District Court of Yellowstone 

County to recover damages for injuries sustained as a result 

of defendants' alleged negligence. The complaint was filed 

on October 15, 1979, and both parties filed motions for 

summary judgment with accompanying briefs and affidavits. 

The District Court held a hearing on the motions, granted 

summary judgment for the defendants and dismissed the plaintiffs' action. Plaintiffs appeal from this dismissal. 

Plaintiff Edmund Beedie is an employee of Goodan Conoco 

Service Station located in Lewistown, Montana. Beedie was 

injured on September 6, 1976, when he was hit by defendant 

Martha Shelley's motor vehicle, driven by defendant John 

Shelley, as he was walking from the shop area to the gas 

pump island of the service station. Beedie received head 

and leg injuries and was unable to return to work for over 

12 weeks. 

Beedie's employer filed a workers' compensation claim 

which was settled on July 14, 1978. Plaintiff Truck Insurance Exchange made final payments to Beedie on July 17, 

1978, and has asserted a subrogation claim in the amount of 

$7,728.06. John Shelley moved to Medford, Oregon, in June 

1978 and Martha Shelley joined him there in August 1978. 

There was some question raised in the District Court 

concerning the reasons for this move and whether or not 

plaintiffs were aware of defendants' location. plaintiffs 

contend that defendants fled the state to avoid service of 

process for this suit and that they were unaware of defendants' whereabouts until September 28, 1979. They argue 

that this disappearance from the state tolled the statute of 

limitations. 
Defendants, however, presented evidence in the District 

Court showing bona fide reasons for leaving the state and 

also that an agent of plaintiff-insurer was aware of their 

new addresses. Defendants argue that they were at all times 

available to service and therefore the statute of limitations had run by the time the action was filed. 

Although appellants raise four issues on appeal, this 

case can be decided on the single issue of whether the 

District Court erred in granting summary judgment based on 

the running of the statute of limitations. 

Appellants initially contend that the statute of limitations was tolled because respondents were outside the 

State of Montana during periods of time after the date of 

the accident. This contention is based on section 27-2-402, 

MCA. Respondents, on the other hand, argue that although 

they have been nonresidents and outside Montana at certain 

times subsequent to the date of the accident, they have 

always been available for service of process under Rule 

4D(3), M.R.Civ.P. (Montana's long-arm statute). 

In Montana a tort action must be commenced within three 

years of the commission of the tort. Section 27-2-204, MCA. 

Section 27-2-402, MCA, provides: 

"If when the cause of action accrues against a 

person he is out of the state, the action may be 

commenced within the term herein limited after 

his return to the state; and if after the cause 

of action accrues he departs from the state, the 

time of his absence is not part of the time limited for the commencment of the action." 

Rule 4D(3), M.R.Civ.P., provides: 

"Personal service outside the state. Where service upon any person cannot, with due diligence, 

be made personally within this state, service 

of summons and complaint may be made by service 

outside this state in the manner provided for 

service within this state, with the same force 

and effect as though service had been made within 
this state. Where service by publication is permitted as hereinafter provided, personal service 

of a summons and complaint upon the defendant out 

of the state shall be equivalent to and shall 

dispense with the procedures and the publication 

and mailing provided for hereafter in 4(5) (c), 

4 (5) (d) and 4 (5) (e) of this rule. " 

Rule 4B (1) , M.R..Civ.P., provides in pertinent part: 

". . . any person is subject to the jurisdiction 

of the courts of this state as to any claim for 

relief arising from the doing personally, through 

an employee, or through an agent, of any of the 

following acts: 

" (b) the commission of any act which results in 

accrual within this state of a tort action; " 

When Rules 4B (1) and 4D (3) are read together, it becomes 

readily apparent that respondents here were at all times 

subject to the jurisdiction of Montana courts and were 

therefore amenable to service of process. 

This Court faced a similar situation in State ex rel. 

McGhee v. District Ct. of Sixteenth J.D. (1973), 162 Mont. 

31, 508 P.2d 130. In McGhee the petitioner requested a writ 

of supervisory control seeking to compel the trial court to 

grant summary judgment based on the running of the statute 

of limitations. The case involved a wrongful death action 

against a ranching pz.r tnership collectively and the partners 

individually. The accident occurred on December 20, 1968, 

while R. W. McGhee was present in the state. He continued 

to reside in the State until May 1971 and after that date he 

resided in Utah. The complaint was filed on January 4, 

1972, and R. W. McGhee was served on May 30, 1972, in Utah, 

pursuant to the long-arm statute. 

In McGhee we granted petitioner's request for supervisory control and held that where plaintiff could effectively serve defendant outside the state, absence from the 
state would not toll the statute of limitations. We stated: 

"The purpose of section 93-2702, R.C.M. 1947 [now 

section 27-2-402, MCA], is to prevent a defendant 

from defeating a plaintiff's claim for relief by 

leaving the state or by establishing residence 

in another state. But, there is an exception to 

this rule. In cases where the plaintiff may effect service of process by some method, even 

though the defendant may be a nonresident or absent from the state, the statute continues to run 

during the absence or nonresidency . . . 

"The alieged tort was committed by R. W. McGhee 

while he resided in Montana and under Rule 4B(1), 

M.R.Civ.P., this subjects him to the jurisdiction of the Montana courts. By being subject 

to the jurisdiction of respondent court and capable of being served during the entire time, the 

statute of limitations was not tolled . . ." 

508 P.2d at 131-32. 

See also, State v. District Court of Fourth Judicial District 

(1966), 148 Mont. 22, 417 P.2d 109; Baker v. Ferguson Research, 

Inc. (D. Mont. 1974), 61 F.R.D. 637. In the instant case, 

the accident occurred on September 8, 1976. Defendant John 

Shelley resided in this state until June 1978 when he moved 

to Medford, Oregon, followed shortly by his wife in August 

1978. The defendants were uninsured at the time of the 

accident; however, shortly after the accident, Martha was 

insured by Mid-Century Insurance Exchange and John by Farmers 

Insurance Exchange, both affiliated companies of appellant 

Truck Insurance Exchange. Exhibits produced in the District 

Court indicated that as of early August 1979 Truck Insurance 

Exchange had knowledge of the Shelleys' Oregon address. 

This address was later utilized in serving respondents with 

the summons and complaint. The complaint here was filed 

October 15, 1979. 

The delay in filing the complaint was apparently caused 

by' appellants' desire to ascertain whether the Shelleys had 
sufficient assets to answer for any judgment before going 

ahead with a lawsuit. This reason is not sufficient to toll 

the statute of limitations, as appellants could have filed 

the complaint before the statute of limitations ran and 

served it within a reasonable time thereafter. Rule 3, 

M.R.Civ.P. The Shelleys were residents of Montana at the 

time of the accident. Under Rule 4B (1) this subjected them 

to the jurisdiction of the Montana courts. Because they 

were subject to our jurisdiction and capable of being served 

during the entire time, the statute of limitations was not 

tolled. State ex rel. McGhee v. District Ct. of Sixteenth 

J.D., supra. 

Appellants next contend that the defense of statute of 

limitations is not available against its subrogation claim. 

We disagree. Appellants' claim is one of subrogation. It 

is derived from that of the insured and is subject to the 

same defenses, including the statute of limitations as 

though the action were sued upon by the insured. SunsetSternau Food Co. v. Bonzi (1964), 60 Cal.2d 834, 36 Cal.Rptr. 

741, 389 P.2d 133; May Trucking Co. v. International Harvester Co. (1975), 97 Idaho 319, 543 P.2d i159. Therefore, 

the statute of limitations began running at the time of the 

accident, September 8, 1976. 

The District Court acted correctly in granting respondents' motion for summary judgment. 

Af firmed. 
V7e concur: 

%-444 %pt,& 

Chief Justice