Lake v. State , 54 St.Rep. 442 ( 1997 )

No. 96-095
IN THE SUPREME COURT OF THE STATE OF MONTANA
DOROTHY J. LAKE, on her own behalf, and as the personal representative
of the estate of CHARLES EDWARD LAKE, deceased,on behalf of his heirs,
Plaintiff and Appellant,
v.
STATE OF MONTANA,
Defendant and Respondent.
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MARK JEFFREY HODIK, a minor, in his own behalf, and by :,,
MARY JO HODIK, his next friend and the personal representative
of the estate of JAMES D. HODIK, deceased, I,>
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Plaintiff and Appellant,
V.
STATE OF MONTANA,
Defendant and Respondent
APPEAL FROM: District Court of the First Judicial District, In and for the County of
Lewis and Clark, The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD
For Appellants:
Ira D. Eakin (argued) and Michael G. Eiselein; Lynaugh,
Fitzgerald, Eiselein & Eakin; Billings, Montana
For Respondent:
Anita Harper Poe (argued), Sherman V. Lohn, and William Evan Jones;
Garlington, Lohn & Robinson; Missoula, Montana
Submitted: October 22, 1996
A n Decided: May 27, 1997
Filed: A
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Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiffs, Dorothy J. Lake and Mary Jo Hodik, individually and as personal
representatives of the estates of Charles Edward Lake and James D. Hodik, commenced
separateactions in the District Court for the First Judicial District in Lewis and Clark County
to recover damages for personal injuries to and the wrongful deaths of their deceased
husbands,whom they claim were injured while working on property owned and controlled
by the defendant, State of Montana, through its Department of Military Affairs. After the
caseswere consolidatedby the District Court, the Statemoved the court to dismiss plaintiffs’
complaints by summary judgment pursuant to Rule 56, M.R.Civ.P. After considering the
arguments of the parties, the District Court concluded that both claims were barred by the
U.S. SupremeCourt’s decisionin Feres IL UnitedStates (1950), 340 U.S. 135,71 S. Ct. 153,
95 L. Ed. 2d 152, and the Ninth Circuit Court of Appeals’ decision in Stuuber v. Cline
(9th Cir. 1988), 837 F.2d 395, cert. denied(1988), 488 U.S. 817. The District Court granted
the State’smotion to dismissboth complaints with prejudice. Both plaintiffs appealfrom the
District Court’s order. We reverse the judgment of the District Court.
We consider the following issue dispositive:
Can a person who is allegedly injured by the negligence of the State of Montana,
acting through its Department of Military Affairs, while in the course of his employment as
a civil service technician employedby the United StatesArmy, sue the State of Montana to
recover damagesfor those injuries?
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STANDARD OF REVIEW
Summary judgment is governed by Rule 56(c), M.R.Civ.P., which provides, in
relevant part, as follows:
The judgment sought shall be renderedforthwith if the pleadings,depositions,
answersto interrogatories, and admissionson file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to ajudgment as a matter of law.
Rule 56(c), M.R.Civ.P.
This Court reviews an order which grants summaryjudgment de nova and appliesthe
samecriteria as the district court. Fenger v. Flathead County (1996), 277 Mont. 507, 509-
10,922 P.2d 1183, 1184,
In this case,the District Court’s order is basedon its conclusions of law. We review
conclusionsof law to determinewhether they are correct. Carbon County v. Union Reserve
Coal Co. (1995), 271 Mont. 459,469, 898 P.2d 680, 686.
FACTUAL BACKGROUND
Plaintiffs allegedby complaint that their deceased
spouses,Charles Edward Lake and
JamesD. Hodik, were injured on June7, 1989, while testing M-l Abrams tanks when those
tanks collided on a test track at Fort Harrison near Helena, Montana. Hodik died from his
injuries on the same date. Lake survived for a period of time, but subsequently died as a
result of his injuries on August 9, 1991.
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Plaintiffs allegedthat at the time of the collision which causedtheir husbands’deaths,
both Lake and Hodik were employed by the United StatesDepartment of Defense as civil
service technician-mechanics, and had been employed to operate the tanks owned by the
Department of Defense during a fielding program designedto test the tanks’ mechanical
performance before turning over ownership of the tanks to the State of Montana and its
Department of Military Affairs.
Finally, the plaintiffs alleged that pursuant to its agreement with the Department of
Defense, the Stateof Montana had a duty to provide a safe and suitable test area, but that it
negligently failed to do so, and that the State’sfailure was a cause of the collision which
causedLake’s and Hodik’s injuries and deaths.
In answer to the plaintiffs’ complaints,the Stateadmitted that at the time of Lake’s and
Hodik’s injuries they were employed by the United StatesDepartment of Defense as civil
servicetechnician-mechanicsand that the State,through its Department of Military Affairs,
had entered into an agreement with the United States Department of Defense for the
acquisition of severalM-l tanks, which Lake and Hodik were operating at the time of their
collision. However, the State deniedthe remaining allegations of the plaintiffs’ complaints.
After the two claims were consolidatedby the District Court, the State moved for
summary judgment on several bases. Those baseswhich are relevant to this appeal were
that: (1) the District Court lacked jurisdiction over the two claims because sovereign
immunity had not been waived with regard to activities of the Montana Army National
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Guard, basedon Evans v. Montana National Guard (1986), 223 Mont. 482,726 P.2d 1160;
and (2) the State cannotbe suedfor injuries to National Guard members which are “incident
to military service,” basedon Feres v. United States(1950) 340 U.S. 135,71 S. Ct. 153,95
L. Ed. 2d 152, and its progeny. In support of its motion for summaryjudgment, the State of
Montana submitted affidavits from Gary Hindoien, Brigadier General, Montana National
Guard; Doug Booker, Centralized Services Administrator of the Department of Military
Affairs for the State of Montana; and Lieutenant Colonel Anthony Morrison. Those
affidavits establishedthe following facts which are uncontradicted:
At the time of their collision on June 7, 1989, Lake and Hodik were federal
techniciansemployedpursuant to 32 U.S.C. 5 709 (1997)’ and were performing duties such
‘32 U.S.C. 3 709 provides, in relevant part, as follows:
(a) Under regulationsprescribedby the Secretaryof the Army or the
Secretary of the Air Force, as the casemay be, and subject to subsection (b)
of this section persons may be employed as technicians in--
(1) the administrationandtraining of the National Guard; and
(2) the maintenance and repair of supplies issued to the
National Guard or the armed forces.
(b) Except as prescribed by the Secretary concerned, a technician
employed under subsection(a) shall, which so employed--
(1) be a member of the National Guard;
(2) hold the military grade specified by the Secretary
concerned for that position; and
(3) wear the uniform appropriatefor the member’sgrade and
componentof the armed forces while performing duties as a technician.
(c) The Secretary concerned shall designatethe adjutants general
referred to in section3 14 of this title, to employ and administer the technicians
authorized by this section.
(d) A technician employed under subsection(a) is an employee of
the Department of the Army or the Department of the Air Force, as the case
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aswere contemplatedby 32 U.S.C. 5 709(a)(2), which included the maintenance and repair
of federal equipment. As required by 32 U.S.C. 3 709(b), Lake and Hodik were also
members of the Montana National Guard, but were not in active service of the Guard at that
time and place. As technicians, they were consideredfederal employees and were paid by
the federal government.
Lake and Hodik, while performing as technicians,were supporting a federally funded
mission to test federally owned tanks under the supervision of the Tank Automotive
Command of the U.S. Army (TACOM). The tanks that they were operating at the time of
their collision belongedto TACOM, which was under the jurisdiction of the Department of
the Army. Hodik and Lake were part of the fielding team which performed under the direct
supervisionof TACOM. The purposeof the fielding team was to test the tanks for the U.S.
Army before turning them over to the Montana National Guard.
Becausetheir deathswere causedby their collision, Lake’s and Hodik’s beneficiaries
were eligible for various benefits pursuant to their status as federal employees. However,
neither Lake nor Hodik, nor their beneficiaries,have received, nor are they eligible for, any
benefits from the State of Montana, including state retirement benefits, life insurance, or
workers’ compensationbenefits.
may be, and an employeeof the United States. However, a position authorized
by this section is outside the competitive service if the technician employed
therein is required under subsection(b) to be a member of the National Guard.
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Lake and Hodik were members of a collective bargaining unit known as the
Association of Civilian Technicians, and were covered by the terms of that Association’s
collective bargaining agreement with the State of Montana while serving as federal
technicians. If they had had a complaint about the terms of their employment on the date of
their injury, they would have been able to express that complaint through the labor
managementgrievanceprocessdetailedin the labor-managementagreement. However, had
they been on active duty for the Montana National Guard, the collective bargaining
agreementand its grievanceprocesswould have beeninapplicable. In that event, they would
have been subject to the Uniform Code of Military Justice.
In support of its motion for summary judgment, the State contended, pursuant to
Evans, that it had not waived sovereign immunity from claims against the National Guard.
The State also contendedthat, pursuant to Evans, Feres, and Stuuber, the claims on behalf
of Lake and Hodik were barred becausethey were basedon injuries sustained“incident to
military service.”
In opposition to the State’smotion for summary judgment, the plaintiffs pointed out
that Article II, Section 18, of the Montana Constitution, abolished sovereign immunity;
Article II, Section32, of the Montana Constitution, subjects the Department of the Military
to civilian power; and Article II, Section 16, of the Montana Constitution, provides that
injured workers are entitled to full legal redressfor injuries causedduring the course of their
employment by persons other than their employer or fellow employees. Plaintiffs also
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contendedthat the Feres and Evans decisionsare distinguishablefrom the facts of this case,
and that the District Court should follow decisionsfrom the State of Washington in Kirtley
v. State (Wash. App. 1987), 748 P.2d 1128, and Emsley v. Army National Guard (Wash.
1986), 722 P.2d 1299.
The District Court agreedwith the Stateof Montana andheld that pursuantto Stauber,
the Feres doctrine, as adopted in Evans, also applied to the facts in this case. The District
Court therefore held that Lake’s and Hodik’s injuries which caused their deaths were
“incident to military service” and that it lacked subject matter jurisdiction to entertain the
plaintiffs’ complaints. Based on these conclusions,the District Court found it unnecessary
to discussthe other issuesraised in the State’smotion for summaryjudgment. Neither do we
review those issues.
As stated,the issueon appealis simply whether a person who is allegedly injured by
the negligence of the State of Montana, acting through its Department of Military Affairs,
while in the courseof his employment as a civil service technician employed by the United
StatesArmy, can sue the State of Montana to recover damagesfor those injuries.
The parties’ respective arguments on appeal mirror those which were made to the
District Court.
We conclude, based on the reasoning set forth in our recent decision in Trankel v.
State ofMontana (Mont. April 30, 1997),No. 96-026, that Feres is inapplicable to the facts
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in this case,and that the plaintiffs’ claims are not barred by our prior decision in Evans, nor
by the Ninth Circuit’s decision in Stauber.
Our conclusion is compelled by Article II, Section 16, of the Montana Constitution,
which provides as follows:
Courts ofjustice shall be open to every person, and speedyremedy afforded
for every injury of person, property, or character. No uerson shall be demived
of this full leeal redress for iniurv incurred in emulovment for which another
person mav be liable extent as to fellow emulovees and his immediate
emulover who hired him if suchimmediate emulover urovides coverageunder
the Workmen’s Comuensation Laws of this state. Right andjustice shall be
administered without sale, denial, or delay.
(Emphasis added.)
As we stated in Trankel, No. 96-026, slip op. at 19:
We reaffirm that pursuant to the second sentencein Article II, Section
16, of the Montana Constitution, any statute or court decision which deprives
an employeeof his right to full legal redress,as defined by the generaltort law
of this state against third parties, is absolutely prohibited. That sentence is
mandatory and self-executing, and leavesno room for erosion basedon what
federal courts or the courts of other stateswould do pursuant to federal laws
or the laws of other states.
At the time of the injuries for which Lake’s and Hodik’s survivors seekcompensation,
they were employed by the Department of the Army of the United States. The State of
Montana was neither their employer nor a fellow employee, but instead, a third party for
purposesof the application of Article II, Section 16, of the Montana Constitution. Therefore,
pursuant to that constitutional provision, their right to full legal redress is preserved as a
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matter of state constitutional law, notwithstanding the authorities relied on by the State and
the District Court.
For these reasons, the judgment of the District Court is reversed. This case is
remanded to the District Court for further proceedingsconsistent with this opinion.
We Concur: