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No. 00-101 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 375N 

RUSSELL E. HUSTWAITE, 

Plaintiff and Appellant,

v. 

MONTANA CONFERENCE OF SEVENTH-DAY ADVENTISTS, a private association; MONTANA 

CONFERENCE ASSOCIATION OF SEVENTH-DAYADVENTISTS, a corporation; NORTH 

PACIFIC 

UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS, a private association; NORTH 

PACIFIC UNION CONFERENCE ASSOCIATION OF SEVENTH-DAY ADVENTISTS, a 

conference; 

and GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS, a private association, 

Defendants and Respondents. 

MONTANA CONFERENCE ASSOCIATION OF 

SEVENTH-DAY ADVENTISTS, a nonprofit corporation, 

Counterclaimant, 

v. 

RUSSELL E. HUSTWAITE, 

Counterclaim Defendant.

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade,

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The Honorable Kenneth R. Neill, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kenneth R. Olson, Attorney at Law, Great Falls, Montana

Ernest F. Ching, Jr., Attorney at Law, Tustin, California

W. Todd Westmoreland, Attorney at Law, Tillamook, Oregon

For Respondents:

Ronald F. Waterman; Gough, Shanahan, Johnson & Waterman, 

Helena, Montana

John Spencer Stewart; Stewart, Sokol, Gray, Portland, Oregon

Phil Hiroshima; Hiroshima, Jacobs, Roth & Lewis, Sacramento

California

Submitted on Briefs: July 13, 2000 

Decided: December 28, 2000

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating 

Rules, the following decision shall not be cited as precedent. It shall be filed as a public 

document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issued by this Court. 

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¶2 The Eighth Judicial District Court, Cascade County, granted summary judgment 

against Russell E. Hustwaite on the entirety of his seven-count complaint and dismissed 

the complaint. Hustwaite appeals. We affirm.

¶3 This action is an outgrowth of litigation against Russell Hustwaite and various Seventhday Adventist churches and groups of churches ("church defendants") beginning in 1988. 

In that year, a former student of Hustwaite's filed suit against him and several of the 

church defendants in the State of Washington, alleging that Hustwaite had sexually abused 

her while she was a student at a church school. Over the next several years, other former 

students in Washington and Montana filed additional lawsuits claiming Hustwaite had 

physically or sexually abused them while he was their teacher.

¶4 Throughout the civil litigation, Hustwaite was provided independent counsel paid for 

by the church defendants or their insurers. Most of the litigation was resolved via 

settlement agreements between the church defendants and the plaintiffs.

¶5 Hustwaite filed this action against the church defendants in 1996. He appeals from the 

District Court's dismissal of five counts of his complaint: (1) an indemnification claim 

against the North Pacific Union Conference for his expenses in defending against criminal 

and civil charges filed against him in Montana; (2) a two-fold claim for defamation, as a 

result of the settlement of students' claims against him and the republication of a CBS 

television news story about a student's claim against the church defendants for sexual 

abuse by a teacher who was not identified by name in the story; (3) a claim that the church 

defendants were negligent in settling students' claims after defending him with insufficient 

vigor; (4) a negligent infliction of emotional distress claim; and (5) an intentional 

infliction of emotional distress claim. 

¶6 The District Court granted summary judgment under the Rule 56(c), M.R.Civ.P., 

criteria that Hustwaite had failed to establish genuine issues of material fact as to any of 

his claims and the church defendants were entitled to judgment as a matter of law. Our 

standard of review of legal determinations such as those presented here is whether the 

court's interpretation of the law was correct. See Bruner v. Yellowstone County (1995), 272 

Mont. 261, 264-65, 900 P.2d 901, 903. 

¶7 We hold that the District Court's conclusions were correct. Hustwaite failed to produce 

evidence for purposes of his indemnification claim that, in his capacity as a teacher, he 

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was an actual agent of the North Pacific Union Conference, which held the insurance 

policy containing the indemnification provision. Further, he failed to establish that an 

ostensible agency existed, in the eyes of the plaintiff Montana students, between himself 

and the North Pacific Union Conference. See Kober v. Stewart (1966), 148 Mont. 117, 417 

P.2d 476. Hustwaite's defamation claims fail as a matter of law for two reasons: the 

complete lack of legal support for the argument that he, as one co-defendant, was defamed 

as a result of the settlement of claims by another co-defendant; and the fact that the 

communication by which Hustwaite complains he was defamed unrefutedly contained no 

untruths and thus was privileged. See § 27-1-804(3) and (4), MCA. Summary judgment on 

the negligence claim was proper because Hustwaite failed to present any evidence that the 

church defendants owed him a duty not to settle claims against them. Finally, the claims of 

negligent and intentional infliction of emotional distress were properly dismissed 

following the failure of all of Hustwaite's other claims. See Sacco v. High Country 

Independent Press, Inc. (1995), 271 Mont. 209, 238, 896 P.2d 411, 429 (a claim for 

emotional distress can only arise out of a defendant's negligent or intentional act). 

¶8 We affirm the judgment of the District Court. 

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER 

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