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Otto v. Montana Dept. of Fish12/14/2000
APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas Honzel, Judge presiding.
Submitted on Briefs: June 22, 2000
1 Appellant Lauryl L. Otto (Otto), in her capacity as personal representative of the estate of Patrick Irish, filed an action in the Montana First Judicial District Court, Lewis and Clark County, to recover damages for the benefit of her minor children for the wrongful death of her former husband, the father of her children, Patrick Irish (Irish). The respondents moved under former Rule 41(e), M.R.Civ.P., to dismiss Otto's complaint on the grounds that the summonses had not been issued within twelve months of the date of the filing of the complaint. The District Court entered an order dismissing Otto's complaint. Otto appeals from that order of dismissal. We affirm the decision of the District Court.
FACTUAL BACKGROUND
2 Irish was a commercial diver employed by Braun Intertec Northwest of Portland, Oregon (Braun). Hydrometrics, Inc. retained Braun to inspect the integrity of the Clearwater Fish Barrier, also known as the Lake Inez Fish Barrier, located in the Clearwater River approximately five miles north of Seeley Lake. That fish barrier originally was constructed by the Montana Department of Fish, Wildlife and Parks to restrict the upstream passage of undesirable species of fish from Seeley Lake to Lake Inez.
3 Irish arrived in Helena on April 4, 1995, to inspect the fish barrier. The next day, an employee of the Montana Department of Natural Resources and Conservation took Irish to Montana Outdoor Sports in Helena to rent diving equipment to be used during his inspection of the fish barrier and then drove him to the fish barrier north of Seeley Lake. It was there, in the course of inspecting the fish barrier that Irish was repeatedly pulled under water by a strong under-tow at the base of the barrier's spillway. Approximately one-half hour after Irish entered the water, he was pulled from the Clearwater River by the Search and Rescue unit of the Missoula County Sheriff's Department. He was immediately transported by helicopter to St. Patrick's Hospital in Missoula where he was pronounced dead upon arrival.
4 Otto filed her complaint on April 3, 1997. Counsel for Otto then discovered in January of 1999 that the summonses which had been prepared in 1997 had not been issued. Summonses were then immediately issued on January 26, 1999, and served upon the defendants.
QUESTIONS PRESENTED
5 I Should this Court adopt an "excusable neglect" exception to former Rule 41(e), M.R.Civ.P.?
6 II Is Rule 41(e), M.R.Civ.P., as a legislative enactment, in violation of Article V, Section 11(3) of the Montana Constitution?
7 III Does Rule 41(e), M.R.Civ.P., deprive Otto of her right to full legal redress pursuant to Article II, Section 16 of the Montana Constitution?
8 IV Does application of Rule 41(e), M.R.Civ.P., deny Otto the right to equal protection of the laws as guaranteed by Article II, Section 4 of the Montana Constitution?
DISCUSSION
9 When the present suit was filed in 1997, Rule 41(e), M.R.Civ.P., provided, in pertinent part:
ll action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced . . . on the motion of any party interested therein . . . unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by th
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