No. 89-168

IN THE SUPREME COURTOF THE STATEOF MONTANA
1989

CECIL P. MILLER, Plaintiffand Appellant,-VSFALLON COUNTY, Defendantand Respondent.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Fallon, The Honorable Roy Rodeghiero, Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
Donald W. Molloy argued;Anderson, Edwards & Molloy, Billings,Montana
For Respondent: Calvin J. Stacey argued; Keefer,Roybal,Hansen, Stacey & Walen,Billings,Montana DenzilR. Young argued,Fallon CountyAttorney, Baker, Montana
ForAmicus Curiae: William L. Crowley; Boone,Karlberg & Haddon, (David '-R. Brown),Missoula,Montana H c= CU 3 0 bcc, 

# :.; LL1 Submitted: September 25, 1989 Degided: December 13, 1989Justice Fred J. Weber delivered the Opinion of the Court.

This appeal arises from an orderby the District Court, Sixteenth Judicial District, Fallon County, Montana. The District Court granted summary judgment in favor of defendant, concluding that plaintiff's suit against FallonCounty
was barred because the county was statutorily immune from suit. Plaintiffappeals. We affirm. The issues on appeal are: 1. Did the District Court err in grantinq summary judgment in favor of defendant Fallon County by determining that, pursuant to 

### 5 2-9-111, MCA, the County is immune from suit? 2. Is § 2-9-111, MCA, constitutional? CecilMiller was injuredwhen his truck,an 18-wheeler, failed to negotiate a curve on a county road on November 3, 1982. Mr. Miller was an independent trucker. He and his wife were carrying a load of lumber from Townsend, Montana, to Minnesota and elected to use secondary roads since they did not possess the required permits to travel on the interstate highway. South of Baker, Montana, Mr. Miller began traveling on a two-lane graveled county road. He approached a curve known as "Russley's Corner," which was unsigned at that time. Mr. Miller lost control of the truck on this

curve andwent off the road and down an embankment. Mr. Miller's wife, Linda, was also injured in this accident. She previously filed suit againsther husband and his alleged employer. That case was appealed to this Court and decided inMillerv. FallonCounty (1986),222Mont. 214, 721 P.2d 342. Cecil Miller subsequently filed suit on his own behalf against Fallon County, alleging negligence in construction, maintenance,and signing of the county road. Defendantmovednity. We begin therefore by explaining the county's system for road constructionandmaintenance. Fallon County is divided into three road districts. The FallonCounty Board of Commissioners (Board)is in charge of the county roads, with one commissioner assigned to each district. Mr. Delane Beach, a member of the Board, was assigned to the road district in which Mr. Miller's accident occurred. At the time of the accident, the road foreman for thisdistrictwasMr. Harold Wiseman. In applying § 2-9-111, MCA, to thepresent case,Fallon County is a "governmental entity" and the Board of Commissioners is its "legislative body." Pursuant to subsection (2)the County is immune from suit for an act or omission of its Board of Commissioners or a "member, officer. or agent thereof." Therefore,on its face, the language of the statute grants immunity to Fallon County for any act or omission of its Board of Commissioners. Additionally, it grants immunity to the County for acts or omissions of Mr. Beach, a member of the Board, or for acts or omissions of agents of the Board. In the present case, it is not disputed that the road foreman,Mr. Wiseman,was an agentof the Board. "Agency"is defined as follows:

Agency is the fiduciary relationwhich results from the manifestation of consentby one person to another that the other shall act on his behalf and be subject to his control,and consentby the other so to act. Restatement of the Law of Agency 2d 

### 5 1 (1958). Additionally, the agency status of the road foreman is contemplated by statute. Section 7-14-2121, MCA, authorizes the Board to divide the county into road districts and place a road supervisor in charge of each district. Section 7-14-2122,MCA,delineates the road supervisor's responsibilities,which are to be performed 

### "[ulnder the direction and control of the board.'' We conclude thatMr. Wiseman was clearly an agent of the Board. We point out that this agency status could be extended to the road crewspursuant to our recent holding in State of Montana ex rel. Eccleston v. Montana Third Judicial District Court (Mont. 1989), 

### -P.2d 

### - 

## , 46 St.Rep. 1929, (custodiansof school district are agents of schoolboard for purposes of immunity under S 2-9-111, MCA)

# . The plain language of the statute therefore extends immunity to Fallon County for acts or omissions of the Board,Mr. Reach, and Mr. Wiseman. In its grant of summary judgment the District Court relied on this Court's previous holdings in W.D. Const. Inc.

v. Bd. of County Com'rs (1985), 218 Mont. 348, 707 P.2d 1111

(county and commissioners were immune from suit arising out of commissionersfapproval of aplat for subdivision); Barnes

v. Koepke (1987), 226 Mont. 470, 736 P.2d 132 (county and commissioners were immune from suit which arose out of commissioners' decision not to renew a hospital lease); Bieber

v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St-Rep. 1218 (county and commissioners were immune from suit for commissioners' termination of county employee). Recently, thedecision of Petersonv. Great Falls School District 1 and A (Mont. 1989), 773 P.2d 316, 46 St.Rep. 880,has been issued,which follows the holdings of the previous cases. In Peterson this Court determined that the school district was immune from suit for the discharge of a custodian. Plaintiff attempts to distinguish these cases by stating that all prior cases involved a decision by the Board, which was found to be a legislative act. He urges that the present case does not involve a decision by the Board. Plaintiff contends that the only involvement the Board of

### for summary judgment asserting immunity as an affirmative defense. Thatmotion was granted.

Did the District Co,urterr in granting summary judgment in favor of defendant Fallon County by determining that, pursuant to § 

### 2-9-111, MCA, the County is immune from suit? Plaintiff's complaint alleged that Fallon County was negliqent indesigning,constructing,maintaining and signing the corner where the accident occurred. Defendant Fallon County moved for summary judgment, claiming immunity. The DistrictCourt granted summary judgment in favor of defendant pursuant to 

### 5 2-9-111,MCA,which provides:
Immunity from suit for legislative acts and omissions. (1) 

### As used in this section: (a) the term "governmental entity'' includes the state, counties, municipalities, and school districts; (b) the term "legislativebody" includes the legislaturevested with legislativepower by Article V of The Constitution of the State of Montana and any local governmentalentity given legislative powersby statute,including schoolboards. (2) 

### A governmental entity is immune from suit for an act or omission of its legislativebody or a member,officex,or agent thereof. (3) 

### A member,officer,or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body. (4) 

### The immunity provided for in this section doesnot extend to any tort committed by the use of a motor vehicle, aircraft, or other means of transportation.

The issue before this Court is whether the District Court was correct in determining that the acts or omissions in the present case fitwithin this statutorygrant of immu-

### Commissioners had in the construction, maintenance, and signing of the road where the accident occurred, was the initial decision to build the road. He urges that the present case only involves acts or omissions of employees. Thus, he distinguishes the present case on a factual basis. As a 

### legal argument, plaintiff also urges that the language of the statuteonly grants immunity for legislativeacts,not administrative acts. He contends that the present case only involves administrativeacts. We conclude that plaintiff's contentions fail both factually and legally. Altho.ughplaintiff contends that as a matter of fact, the only involvementby the Board of Commissionerswas the decision tobuild the road,deposition testimony belies this contention. The deposition of the County Commissioner in charge of this road, Mr. Delane Beach, and the deposition of Mr. Harold Wiseman, demonstrate rather extensive and continuous involvementby the Board of Commissioners in road constructionandmaintenance. Because factually this involvementunequivocally establishes the county's right to claim immunity in this case,we set out this involvement in some detail. In substance this testimonyestablished that all three commissionersdetermined priorities on new construction, on anymajor project, and on budgeting. The commissioners as a group made decisions regarding implementation of state recommendations regarding roads,bridges, etc. In regard to new construction,Mr. Beach stated thathe gave general direction to the road crews, such as directing that a road be constructed along section lines. While many details were left up to the judgment of the road foreman and road crews,Mr. 

### Beach alsoparticipated in specificdecisions regarding the width and slopeof certainroads. In regard to maintenance, Mr. Beach testified thathe drove all the roadsin hisdistrict twice ayear, identifying roads,bridges, and culverts which needed repair. This information was then given to the road foreman, along with any complaints Mr. Beach had received. He stated that he would work closely with the road foreman and the crew in deciding where repairs were needed, and that he would personally follow up to be sure the actual repairs weremade. Mr. Beach stated that the road foreman was to use his judgment as to which corners required signs, and once the decision to signwas made, the signwas to be in accordance with theTraffic ControlManual. Mr. Beach also stated that he was the individual who gave the order for the reconstructionof Russley's Corner in themid-1970's. He stated that itwas hewho determined that the corner needed a "gentler" curve. Additionally, Mr. Wiseman's testimony indicated that Mr. Beach was personally involved in decisions regarding the construction and maintenance of the roads. We conclude that any acts or omissions complained of in the present casewere acts or omissions of theBoard, itsmembers, and its agents. On a legalbasis,plaintiff contends that only legislative acts are immune,not administrativeacts. Heurges that the acts complainedof in the present case are administrative rather than legislativeor discretionary. Plaintiff suggests the effect of granting immunity in this case is to create blanket immunity to the county. He urges this is not the intent of S 2-9-111,MCA. In urging this distinction between legislative and administrative acts, plaintiff refers the Court to the language of the Montana Constitution, Article 11, Section 18, and § 2-9-102,MCA. Article 11, Section 18, states:

### State subject to suit. The state, counties, cities, towns, and all other local governmental entities 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. Section 2-9-102,MCA, states:
Governmental entities liable for torts except as specifically provided by legislature. Every governmentalentity is subjectto liability for 

### its torts and those of its employees actingwithin the scopeof their employment or duties whether arising out of a governmental or proprietary function except as specifically provided by the legislature under Article 11, section 18, of The Constitution of the State ofMontana. Plaintiff urges that any statute granting immunity is an exception to the general rule of liability and must be narrowly construed, citing R.M. v. 

### State (1982),200 Mont. 58, 649 P.2d 425. The present Montana Constitution, enacted in 1372, abolished sovereign immunity through Article 11, Section 18, yet empowered the legislature to reestablish immunity by a two-thirds vote of each house. In 1977 the legislature enacted 2-9-111, MCA, and also amended S 

### 2-9-102, MCA, to its present form. By enacting § 

### 2-9-111, MCA, the legislature,by itspower,granted immunity to counties. Although the statute is entitled "Immunity from suit for legislative acts and omissions," our previous interpretations of this statute have rejected the contention that only acts or omissions which are legislative in nature are immunized. InBieber,this Court stated,

Bieber initially argues that the District Court incorrectly assessed the meaning of § 

### 2-9-111,MCA, and its applicability to the Commissioners' action. He asserts that the statute

### represents a narrow exception to the constitutionally mandated rule of no sovereign immunity and as such its protection is limited to purely "legislative" acts and excludesday to day "administrative" responsibilities such as the firing of a county employee.

Appellant asks that we recognize the distinction between administrative acts which should not be protected and legislative acts which should be protected. We decline to give credence to appellant's argument because the plain language of the statute makes no such distinction. As we have stated,this Court will notdelve outside theplain meaning of the words used in a statute. See, W.D. Construction, 707P.2d at 1113 and Barnes,736 P.2d at 134. Bieber, 759 P.2d at 146, 147. Recently, in Petersonwe reiterated that "the action of the legislative body need not be legislative in nature to afford immunity." Peterson, 773 P.2d at 318. Peterson involved the terminationof a school district custodianby an administrative assistant. The dischargewas ratified by the school board at a subsequent meeting. We noted that $ 

### 2-9-111, MCA, clearly extended immunity to school districts, school boards, and their agents. We also found it significant that school districts are statutorily authorized to hire and dismiss custodians pursuant to $ 

### 20-3-324(2), MCA. Thus we concluded that the immunity statute clearly applied to that situation. The present case is analogous to Peterson, and we conclude that the holding in Peterson is controlling. As previously established, the plain language of the stat.ute grants immunity to the county for actions of its Board, and the Board's members and agents. This immunity is fortified in the 

### present case since by statute the Board is assessedmany statutory powers and duties in relation to the county roads. See 7-14-2101 through 2125, MCA. These statutorily mandated duties necessitate extensive involvement by the Board and its agents in decisions regardingroad construction andmaintenance. We conclude that the acts or omissions complained of
are actsby the Board of Commissioners,orby amember, or by its agent, for which Fallon County is immune from suit. Accordingly,we affirm the grant of summary judgment in favor of FallonCounty.

I1 Is 

### 5 2-9-111,MCA, constitutional? Plaintiff contends that § 2-9-111, MCA, is unconstitutional because it denies him full legal redress, which is a fundamental right. He urges that granting immunity to counties classifies victims of torts according to whether they

are injured by the state, county, or a private party,which is a denial of equalprotection. He contends that since this classification affects a fundamental right, it requires a compelling state interest. He urges there is no compelling state interest. In Petersonwe addressed this same contention, stating that the right involvedwas access to the courts, rather than full legal redress. Since access to the courts is not a fundamental right, Bieber, 759 P.2d at 148; Linder v. Smith (Mont. 1981), 629 P.2d 1187, 1190, 38 St.Rep. 912, 915, the State need only show a rational relationship. As in Peter-
son,we reaffirm the determination that the statute at issue 

### - has previously passed the rational relationship test. We also note that this Court has recently decided that f.ul1 legal redress is not a fundamental right under the Montana Constitution. See Meech v. Hillhaven West, Inc. (Mont.2-9-111, MCA, is constitutional. Affirmed.

We Concur: A

Justices

Justice John C. Sheehy, dissenting:

For the same reason I expressed in the case of Peterson

v. Great Falls School Dist. No. 1 and A (19891, 

### -Mont. 

### , 773 P.2d 316, 319, I dissent to the foregoing Opinion.

-\

\ __i-L4+- Justice 

# v

> i I concur in the foregoing dissekyof Justice Sheehy.

Justice