Northern Lights, Inc. v. State , 51 State Rptr. 394 ( 1994 )

No. 93-554
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
NORTHERN LIGHTS, INC.,
an Idaho corporation,
Plaintiff and Respondent,
THE STATE OF MONTANA,
DEPARTMENT OF HIGHWAYS,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Nick A. Rotering and James R. Beck, Department of
Transportation, Helena, Montana
For Respondent:
Larry D. Epstein and Thane P. Johnson, Werner,
Epstein & Johnson, Cut Bank, Montana
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Submitted on Briefs: April
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?3 1994 Decided: May 3
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The State of Montana, Department of Highways, now the Depart-
ment of Transportation (Department), appeals from a summary
judgment order of the First Judicial District Court, Lewis and
Clark County. The court ordered the Department to reimburse
Northern ~ights,
Inc. (Northern), an Idaho utility company, for 75
percent of expenses incurred in relocating its utility facilities
which were situated near a federal-aid secondary road in rural
Lincoln County, Montana. We affirm.
The Department questions whether the District Court erred in
determining that 3 60-4-403, MCA, required the State to reimburse
Northern for 75 percent of its relocation expenses and whether
Northern's claim for reimbursement was barred by 5 27-2-211, MCA.
Northern owns certain utility facilities located in Lincoln
County. Portions of the facilities are located on United States
Forest Service land and portions are located on private properties.
Prior to 1986, the Federal Highway Administration (FHWA)
decided to finance and construct a forest highway on Montana's
federal-aid secondary road located in Lincoln County. By agreement
With FHWA, the Department purchased necessary rights-of-way and
administered the road project for the FHWA.
Part of the Department's administration of the project
entailed asking Northern to relocate its utility facilities which
were located on Forest Service land. Northern complied. The
District Court specifically noted:
2
Northern Lights began the process of moving its utilities
in November of 1987 and completed the principal portion
of its work by April of 1988. However, the entire
relocation project was not completed until March 1989.
The Department and Northern did not operate pursuant to any written
contract; the Department did, however, prepare and offer Northern
a utility relocation agreement, which Northern refused to sign.
In January 1989, Northern requested a hearing pursuant to
5 60-4-402, MCA, and the Department declined to grant the request.
This declaratory judgment action followed that denial and the
Department's refusal to reimburse Northern for a portion of the
cost of relocating its utility facilities.
ISSUE 1
Did the District Court err in determining that the Department
must reimburse Northern for 75 percent of relocation expenses as
set forth in 9 60-4-403, MCA?
This Court reviews a district court's decision for or against
summary judgment by utilizing the same criteria the court used in
its deliberations. Knight v. City of Missoula (1992), 252 Mont.
232, 827 P.2d 1270. Summary judgment is appropriate when there are
no disputed issues of material fact and one party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P. Here, where
both parties agree there are no disputed issues of material fact,
we review whether Northern is entitled to judgment as a matter of
law.
The Department asserts that judgment in favor of Northern is
improper because it believes that the provisions of 5 60-4-403,
MCA, do not apply when federal funds are used to construct a
highway in Montana and when the utility company involved has a
Forest Service permit to be on the land. We disagree.
When interpreting statutes, courts are to "simply . . .
ascertain and declare what is in terms or in substance contained
therein, not to insert what has been omitted or to omit what has
been inserted." Section 1-2-101, MCA; see also State ex rel.
Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201,
203-04. Section 60-4-403, MCA, provides:
Seventy-five percent of all costs of relocation, includ-
ing the costs of acquisition of new right-of-way, of
dismantling and of removal, shall be paid by the depart-
ment as a cost of highway construction.
The section does not list any prerequisites for payment, contrary
to the Department's assertions. It does not contemplate, mention
or refer to federal or state ownership of the highway. Cf. 5 60-4-
401, MCA. It does not require that the utility company own, rent
or lease the land. Nor does it require that the Department and the
utility company have a written contract, specifying payment
provisions.
The only requirement before 75 percent of relocation costs
must be paid by the Department under 5 60-4-403, MCA, is that a
utility company relocate its utility facilities in order for the
Department to further highway construction. Northern did relocate
its facilities. We therefore conclude that the District Court did
not err in determining that the Department must pay 75 percent of
Northern's relocation costs.
ISSUE 2
Was Northern's claim for reimbursement of relocation expenses
barred by 5 27-2-211, MCA?
The Department argues that Northern's claim for reimbursement
was barred by the statute of limitations set forth at 5 27-2-211,
MCA, because it alleges that Northern completed relocation of the
utility facilities during April 1988. While we agree that
Northern's claim for reimbursement was a statutory claim with a
two-year statute of limitations pursuant to P 27-2-211, MCA, we
disagree with the Department's allegation that the relocation was
completed during April of 1988.
The Department bases its allegation on answers it received
during the discovery phase of this litigation, which were filed in
connection with the Department's June 1991 motion for summary
judgment. Specifically, when the Department asked Michael Fox, the
general manager of Northern, whether the relocation project was
completed during April, 1988, Fox said yes. Fox later clarified
his response by stating:
As indicated in [the answer to the Department's ques-
tion], ... the major portion of the relocation work for
which reimbursement is sought in this action, was
completed by the latter part of April, 1988. It was this
work to which affiant referred in response to Defendant s
counsel's question at deposition herein, indicating that
this portion of the work was, in fact, completed in April
of 1988.
Plaintiff corporation utilized the services of an
independent contractor in the major portion of this
relocation project and it was that work, referred to as
"primary utility relocationv1 which affiant referred in
to
his response to deposition questioning by counsel for
defendant and in response to Interrogatories from
Defendant. This contractorvs work was substantially
completed in April of 1988.
Plaintiff Is claim upon which this action is based
includes various items of work that were conducted in
relocation of facilities for this project in the months
following April of 1988 including work done directly by
Plaintiff in November of 1988 and relocation of poles as
recently as March, 1989. Work Orders Nos. 88-865, 88-822
and 89-820 (referred to in affiant's deposition and
Defendant s brief) were completed after the main project
was completed and are a part of Plaintiff Is claim herein.
In its November 4, 1991, Order, the court stated:
In this claim for payment under Section 60-4-403, the
utility is entitled to recover a percentage of all costs
of relocation. Thus, the full demand for payment cannot
be made until the entire relocation project is completed.
On this basis, Northern Light's cause of action accrued
upon completion of its relocation project, in March of
1989. Since the complaint was filed in July of 1990,
less than two years later, the action is not barred.
After reviewing the record, we conclude that the court did not err
in determining that Northern's claim was not barred by 1 27-2-211,
MCA. Affirmed.
We concur: