NO. 91-456 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN THE MATTER OF THE ESTATE OF 

NORMAN S. GREEN, DECEASED. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark W. Mattioli; Poore, Roth & Robinson, Butte, 

Montana 

For Respondent: 

Richard Volinkaty, Missoula, Montana 

Submitted on Briefs: February 20, 1992 

klWR a 9 5992 Decided: March 19, 1992 

Filed: 

I 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

This is an appeal by the Estate of Norman S. Green from the 

May 8, 1991 order of the ~istrict Court for the Fourth Judicial 

District, iss sou la County. In that order, the court appointed the 

Public Administrator for ~iSS0ula County to serve as Personal 

Representative of the Estate for the purpose of accepting service 

of the summons and complaint in a medical malpractice action filed 

by Patricia Freese. We affirm. 

The issue is whether the District Court erred in failing to 

give notice to interested persons of the hearing on the petition 

for appointment of a personal representative. 

Norman S. Green, M.D., died on November 25, 1981. Jann Green 

was appointed as Personal Representative of the Estate. On March 

12, 1987, she filed her sworn statement to close the Estate, which 

was then closed on January 26, 1988. 

On May 18, 1988, Patricia Freese filed a medical malpractice 

action against, among other defendants, Norman S. Green and his 

Estate. When she was unable to locate Jann Green, the former 

personal representative, she filed a petition for appointment of 

the Missoula County Public Administrator as personal representative 

to accept service on behalf of the Estate. 

The petition asked that the court order that notice be mailed 

to the insurance carrier for the deceased, the attorneys for the 

estate of the deceased, the last known addresses of the distribu- 
tees of the Estate, and the Public Administrator. The District 

Court ordered that notice be "served by ordinary first-class mail 

upon those persons specified in the Petition at least fourteen (14) 

days prior to the time set for hearing." The court's order also 

provided that 

any lack of Notice as stated herein shall not affect this 

Court's appointment of a Special Administrator for the 

purposes set forth in the Petition at the time set for 

hearing should the Court determine such appointment 

necessary and appropriate. 

Counsel for Green's insurer, Aetna Insurance Company, was 

present at the May 8, 1991 hearing for the limited purpose of 

contesting jurisdiction. At the conclusion of the hearing, the 

court appointed as personal representative the Public Administrator 

for Missoula County. 

The position of the Estate is that because the address of the 

former personal representative was unknown, notice of the hearing 

on appointment of a new personal representative should have been 

published, under 5 72-1-301(1) (c) , MCA. However, 5 72-1-301(2), 

MCA, provides that, for good cause shown, the court may provide for 

a different method or time of giving notice for any hearing. 

Here, the exposure of the Estate is limited to its available 

insurance, pursuant to 5 72-3-803 (1) and (3) , MCA. The insurer was 

served with notice, appeared at the hearing, and did not propose 

any other person to be appointed as personal representative for the 

purpose of service of the complaint. 
Under the circumstances of this case, there is no apparent 

purpose for requiring publication of notice of the hearing on 

appointment of a new personal representative other than harassment 

and delay. We hold that the District Court did not err in the 

manner in which it directed that notice be given or in appointing 

the Public Administrator as personal representative at the 

conclusion of the hearing. Affirmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

Chief Justice 

We concur: 
March 19, 1992 

CERTIFICATE OF SERVICE 

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

named: 

Mark W. MattioIi 

Poore, Roth & Robinson 

1341 Harrison Ave. 

Butte, MT 59701 

Richard Volinkaty 

Attorney at Law 

P.O. Box 8272 

Missoula, MT 59807 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA