No. 92-386 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

WILLARD EARL ARNOLD, 

Plaintiff and Respondent, 

BOISE CASCADE CORPORATION, 

a Delaware corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Maurice R. Colberg, Jr., Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David A. Veeder, Veeder & Broeder, 

Billings, Montana 

For Respondent: 

K. D. Peterson, Peterson and Schofield, 

Billings, Montana 

Submitted on Briefs: January 21, 1993 

Decided: July 6, 1993 

Filed: 

CLERK OF SUPR.il,l*5 COURT 

STATE OF 1'iiihjlUTAl;rA 

Clerk 
Justice Terry N. ~rieweiler delivered the opinion of the Court. 

Boise Cascade Corporation appeals from a jury verdict and 

judgment entered in favor of Willard Earl Arnold by the District 

Court for the Thirteenth Judicial District, Yellowstone County, on 

July 2, 1992. Arnold was awarded damages of $41,920 for wrongful 

discharge from employment by Boise. 

We affirm. 

The following issues are raised on appeal: 

1. Was Arnold barred from seeking relief because he failed 

to file suit within one year as required by the Wrongful Discharge 

From Employment Act? 

2. Did the trial court abuse its discretion when it allowed 

Arnold to testify concerning the amount of damages he incurred? 

3. Did the trial court abuse its discretion by allowing 

Arnold's counsel to present evidence of damages during summation? 

4. Did the trial court abuse its discretion when it refused 

Boise's proposed jury instruction defining the term "discharge"? 

This litigation involved a factual dispute with respect to the 

time and circumstances surrounding Arnold's termination from 

employment with Boise. 

Arnold was hired by Boise in July 1982 to work at the millwork 

facility in Billings. In order to provide standard guidelines and 

personnel policies, Boise provided its employees with a "U.S. 

Salaried Employee Handbook1' which referred to Boise's Corporate 

Policy Manual. 
Of significance to this litigation are the provisions of the 

Handbook and Policy Manual which provide for "temporary curtailment 

leave," defined as an unpaid absence caused solely by reduced work 

availability. Specifically at issue was the company's policy of 

reinstating an employee who has been placed on temporary leave to 

the position previously occupied or, if that position is not 

available, to one that is suitable based on the employee's salary, 

skills, and experience. The manual states that temporary 

curtailment leave concludes when six months have elapsed and the 

employee has not been asked to return to work. It further states: 

"At the end of six months, the employee will be terminated subject 

to the provisions of the Termination of Employment Policy, 10.2. 

Such termination will be considered involuntary, and severance pay 

provisions apply." The termination provisions referred to require 

the company to give the employee a written notice of termination or 

two weeks pay in lieu of that notice, and severance pay based on 

length of service and salary at the time of termination. 

On February 19, 1988, due to a lagging local economy, Arnold 

was placed on temporary curtailment leave and was told he would 

probably be recalled in one to two months. By April 1988, when he 

had not yet been recalled by Boise, Arnold accepted a position with 

the Gardner Distributing Company at a salary considerably lower 

than what he was earning at Boise. On April 13, 1988, Arnold went 

to Boise and requested his vacation pay and funds in his 

Supplemental Savings and Retirement Plan (SSRP). 
It is at this point that each party's version of events 

varies. 

Arnold's representation to the jury was that he always 

anticipated returning to Boise, because he was led to believe he 

would have that opportunity when he was temporarily laid off. He 

took the job with Gardner and requested his vacation pay and SSRP 

funds because he could not idly sit and wait to be rehired, and 

needed the money to provide for his family during the interim. He 

insisted that he never told anyone that he was voluntarily 

resigning from Boise, and that it was his understanding that if he 

went back to work for Boise, he could repay the SSRP funds and 

reinstate the program. 

Although six months eventually elapsed, Arnold pointed out 

that Boise never initiated the involuntary termination procedures 

as described in the manual which required Boise to give Arnold 

notice or pay in lieu of notice, and severance pay. Arnold's claim 

was that the temporary curtailment leave was never terminated, and 

that Boise had an obligation to rehire him in accord with the 

company's policies as soon as a suitable position was available. 

He testified that he made very clear to the management that he was 

ready, willing, and able to return to Boise whenever he received a 

call, even if it was just a part-time position. 

In contrast, Boise asserted that Arnold voluntarily terminated 

his employment with the company when he accepted the position at 

Gardner and requested his vacation and retirement pay. Boise noted 

that, although Arnold contacted the company frequently during the 
first two months of lay-off, he never inquired about job 

possibilities after taking the job with Gardner even though he was 

aware that some employees were being reinstated. Boise testified 

that Arnold admitted that he knew SSRP funds could only be paid 

upon separation from the company, and that, when he elected to 

continue health care coverage on a self-pay basis, Arnold 

understood that his health coverage had ended due to termination 

of employment on April 13, 1988. Thus, it was Boise's contention 

that Arnold voluntarily terminated employment on that date. 

Although Boise asserted that Arnold terminated on a voluntary 

basis on April 13, 1988, it argued that even if the jury believed 

otherwise, once six months of temporary leave had elapsed, an 

involuntary discharge was automatically effective according to the 

company's policy. In either case, the company contends it was 

thereafter under no legal obligation to rehire or reinstate Arnold 

since he was no longer employed by Boise. 

In March 1990, Arnold discovered that Boise was ready to fill 

the position that he had been laid off from two years earlier. 

When he inquired about the job, he was told he would have to fill 

out an application and wait for the company to respond. Two to 

three weeks later he was informed that Boise had hired another 

applicant to fill the position. 

Arnold filed suit ten months later, on January 16, 1991, in 

which he claimed that he had been wrongfully discharged from 

employment on or about April 1990, when Boise failed to recall or 

rehire him in accordance with company policy. He sought damages 

5 
for loss of wages, fringe benefits and costs, and expenses. The 

cause of action was based on Montana's Wrongful Discharge From 

Employment Act, found at $5 39-2-901 through -914, MCA. As set 

forth by Arnold, 39-2-903(2), MCA, defines a discharge to include 

glfailure to recall or rehire," and the act specifies that a 

discharge is actionable if it was not for good cause or was in 

violation of the express provisions of the employer's written 

personnel policy. 

A trial was held on June 29, 30, and July 1, 1992. The jury 

resolved the questions of whether there had been a voluntary 

discharge, and whether Boise had an obligation to recall or rehire 

him, in Arnold's favor and against Boise. It found that Arnold had 

not terminated employment in 1988, but rather had been discharged 

in 1990 without good cause and in violation of the company's 

written personnel policy when it failed to recall or rehire him. 

The jury assessed damages in the amount of $41,920. 

Judgment for that amount was entered against Boise on July 2, 

1992. From that judgment, Boise appeals. 

I. 

Was Arnold barred from seeking relief because he failed to 

file suit within one year as required by the Wrongful Discharge 

From Employment Act? 

Arnoldls claim is governed by 5 39-2-911, MCA, of the Wrongful 

Discharge From Employment Act, which states that all actions 

brought pursuant to this act must be filed within one year after 

the date of discharge. Boise claims that Arnold voluntarily 

6 
terminated his employment on April 13, 1988, and the complaint was 

not filed until January 16, 1991, nearly three years later. 

The evidence Boise presented to the jury was that even if 

Arnold did not know he had been terminated in 1988, the documents 

forwarded to Arnold, such as the withdrawal of SSRP funds, vacation 

pay, and the health benefit election, supported the fact that Boise 

affirmatively discharged him from employment at that time. Boise 

asserts that the statute cannot run from the time when it refused 

to rehire Arnold because it had no obligation to do so. 

After considering the evidence and testimony, the jury found 

otherwise. The jury was asked to decide whether a discharge had 

occurred on or before January 16, 1990, the date one year prior to 

the time Arnold filed his cause of action. It found that a 

discharge had not occurred. The jury found that Arnold had not 

quit his employment with Boise, nor did Boise take the necessary 

steps to effectuate an involuntary termination prior to that date. 

Boise appeals this finding and urges this Court to find as a matter 

of law that Arnold's employment was terminated on April 13, 1988, 

thus precluding him from stating a claim for relief. 

When, and under what circumstances, Arnold was discharged from 

Boise are questions of fact which were properly presented to the 

jury. We recently discussed our function in reviewing jury 

verdicts in Simchuk v. Angel Island Community Association (1992 ) , 253 Mont . 

221, 833 P.2d 158, and SilV.k%H~bb~ (1992), 251 Mont. 407, 824 P.2d 

1013. In those cases, we held that it is not the function of this 
Court to agree or disagree with the jury's verdict. Our role is to 

determine whether there was substantial evidence to support the 

verdict. Substantial evidence is evidence which a reasonable mind 

might accept as adequate to support a conclusion, even if the 

evidence is weak or conflicting. Silvis, 824 P.2d at 1015. 

We reaffirmed these general principles in Wisher v. Higgs (Mont. 

1993), 849 P.2d 152, 156, 50 St. Rep. 191, 193, where we stated 

that when reviewing the record, we examine the facts in a light 

most favorable to the prevailing party. If conflicting evidence 

exists, we do not retry a case because the jury chose to believe 

one party over another. Simchuk, 833 P.2d at 163. 

In this instance, the jury's resolution of the discharge issue 

was based primarily on its determination of credibility of the 

witnesses and the weight to be given to specific evidence. 

Arnold's testimony on this point was corroborated by the admission 

of some management-level employees that Arnold never actually 

stated that he was quitting. Furthermore, the evidence suggests 

that Boise's assumption that Arnold was quitting was largely one of 

inference. It is evident that the jury chose to believe the 

evidence presented on Arnold's behalf on this disputed point, and 

it is not our function to find otherwise, provided there is 

adequate evidence to support this finding. 

Based on our review of the record, we conclude that there was 

substantial evidence to support the finding that Arnold was not 
barred from seeking relief by the statute of limitations. We 

affirm the jury verdict on this issue. 

11. 

Did the trial court abuse its discretion when it allowed 

Arnold to testify concerning the amount of damages he incurred? 

Boise next asserts that the court improperly allowed Arnold to 

testify concerning his estimation of the damages he incurred. The 

basis for Boise's objection to this testimony is that Arnold was 

not trained as a labor economist and had no training or experience 

in calculating the value of fringe benefits. Boise complains that 

some of the calculations were admittedly wapproximations,u and in 

one instance Arnold retracted a previous statement regarding the 

value of his benefits, stating he had been mistaken. Boise further 

protests the fact that Arnold could not produce any documentary 

evidence to support his assessment of the value of the fringe 

benefits. 

A court's ruling on the admissibility of evidence, which 

includes a witness's testimony, is subject to an abuse of 

discretion standard and we will not overturn a court's ruling 

absent a showing of an abuse of discretion. Mirantiv. Om (1992), 

253 Mont. 231, 833 P.2d 164. 

Section 39-2-905(1), MCA, provides for specific damages to be 

awarded in a wrongful discharge action, and limits them to lost 

wages and fringe benefits for a period not to exceed four years 

from the date of discharge, together with interest. Additionally, 
interim earnings must be deducted from the amount awarded for lost 

wages. 

After reviewing the record, we note that Arnold testified to 

the amount he had been earning at Boise, what he had earned in the 

interim, and documented this by submitting his W-2 tax forms. 

Arnold also knew the benefits he had received while at Boise and 

based his testimony on his personal knowledge of what those 

benefits were worth. The fact that he conceded these were 

approximations would go to the weight the jury would give to this 

testimony, rather than its admissibility. There was also evidence 

from Boise regarding the wages currently being paid for his former 

position. 

Considering the testimony as a whole, we do not find it 

unreasonable that the court allowed Arnold to testify about his 

wages and benefits while employed at Boise, and the amounts he 

earned after the company refused to rehire him. We conclude the 

court did not abuse its discretion when it determined that Arnold 

was competent to testify concerning his estimation of damages. 

111. 

Did the trial court abuse its discretion by allowing 

Arnold's counsel to present evidence of damages during summation? 

Boise contends that, in addition to the inadequacy of Arnold's 

assessment of damages, the problem was compounded when the court 

allowed Arnold's counsel to present a written summary of the 

alleged damages which included an interest rate not in evidence, 

and a fringe benefit figure that contradicted Arnold's estimate. 
By allowing this objectionable summation, Boise maintains the court 

committed prejudicial error relating to the jury's award of 

damages. 

The court's ruling on this evidentiary matter is similarly 

discretionary and will be upheld absent an abuse of discretion. 

Miranti, 833 P.2d at 166. 

After reviewing the pertinent sections of the closing argument 

in question, we cannot conclude that the figures put forth by 

Arnold's counsel were totally unsupported by evidence which was 

before the jury. Moreover, when the attorney for Boise objected to 

the use of the interest rate it was made clear to the jury that 

they were not required to use that specific interest rate. We note 

that the damages verdict that the jury arrived at was its own 

assessment: it was not the value estimated by Arnold or requested 

by his counsel. In light of the jury's obvious ability to consider 

the evidence as a whole and make its own determination of damages, 

we conclude there was no abuse of discretion when the court allowed 

the challenged summation. 

IV. 

Did the trial court abuse its discretion when it refused 

Boise1 s proposed jury instruction defining the term "discharge1'? 

The District Court has discretion in deciding how to instruct 

the jury, taking into account the theories of the parties, and we 

will not overturn that decision absent an abuse of discretion. 
Mannix v. Butte Water Company (Mont. 1993) , 50 St. Rep. 691, 699 ; Cline v. 

Durden (1990), 246 Mont. 154, 164, 803 P.2d 1077, 1083. 

Boise contends that the court erred when it refused to give 

the following offered instruction which directly quoted the 

definition of discharge under 5 39-2-903(2), MCA: 

Discharge is defined as any termination of employment, 

including resignation, elimination of the job, layoff for 

lack of work, failure to recall or rehire, and any other 

cutback in the number of employees for a legitimate 

business reason. 

Instead, the court instructed the jury that "Discharge includes 

termination of employment including resignation, failure to recall 

or rehire." Boise contends the jury had no opportunity to conclude 

that Arnold was discharged through a different means, at a 

different time, than the two events specified. The assertion is 

that when the jury was asked to determine if Arnold was discharged 

on or before a date one year prior to the time suit was filed, it 

could have drawn no other conclusion than "now in light of the 

definition it was given. 

We disagree with this contention. On the basis of the 

definition it was given, the jury could have concluded that Arnold 

resigned through voluntary termination of employment on April 13, 

1988, as was argued by Boise. Had it so concluded, Arnold would 

have been precluded from any recovery under this cause of action. 

The instruction addressed the types of discharge which were 

supported by the evidence, and informed the jury of the two 

theories advanced by the parties--whether there had been a 
discharge through a voluntary resignation, or a failure to recall 

or rehire when the company was obliged to do so. It was within the 

court's discretion to instruct the jury on this matter, and we 

conclude the court did not abuse its discretion when it refused 

Boise's request to include the entire statutory definition of 

discharge. 

For the reasons stated, the judgment of the District Court is 

af f inned. 
July 6, 1993 

CERTIFICATE OF SERVICE 

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

named: 

David A. Veeder 

Veeder & Broeder 

P.O. Box 1115 

Billings, MT 59103-1115 

K. D. Peterson 

Peterson & Schofield 

2906 Third Ave. No. 

Billings, MT 59101 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE @F YONTANA