Calcaterra v. Montana Resources9/20/2001
APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, Honorable John W. Whelan, Judge Presiding
Submitted on Briefs: March 1, 2001
Karen Calcaterra (Karen) filed a Rule 60(b)(6), M.R.Civ.P., motion for reconsideration and relief from a judgment of dismissal, based on a change in the law, in the Second Judicial District Court, Silver Bow County. The motion was deemed denied after the District Court failed to timely rule on it, and Karen appeals. We affirm.
The issue on appeal is whether the denial of Karen's Rule 60(b)(6), M.R.Civ.P., motion was an abuse of discretion. BACKGROUND
The underlying case was before us in Calcaterra v. Montana Resources, 1998 MT 187, 289 Mont. 424, 962 P.2d 590. Karen, the surviving spouse and personal representative of the estate of Carl J. Calcaterra (Carl), brought a wrongful death and survivorship action against Montana Resources, Carl's employer, alleging it violated federal safety regulations by directing Carl to work on an unsecured ladder, thereby intentionally and maliciously causing Carl's injuries and death. Calcaterra,
7. Montana Resources moved to dismiss for failure to state a claim upon which relief could be granted or, in the alternative, for summary judgment. The District Court denied the motion to dismiss but did not rule on the alternative motion. Calcaterra, 7.
Montana Resources subsequently renewed its motion for summary judgment, arguing Karen's claims were barred by § 39-71-411, MCA, because the Montana Workers' Compensation Act (the Act) was the exclusive remedy for Carl's injuries and death. The District Court granted summary judgment to Montana Resources, dismissed Karen's complaint, and entered judgment accordingly. Calcaterra, 8.
Karen appealed, and we affirmed on July 29, 1998, concluding that she "failed to raise a genuine issue of material fact regarding whether Montana Resources caused Carl's injuries and death via an intentional and malicious act or omission." Calcaterra, 22.
In reaching that conclusion, we relied on Schmidt v. State (1997), 286 Mont. 98, 105, 951 P.2d 23, 28, for the proposition that proof of negligence, even wanton negligence, is not sufficient to avoid the exclusive remedy of the Act. Calcaterra, 20-21.
Subsequently, we clarified the definition of "intentional and malicious" within the context of § 39-71-413, MCA. In Sherner v. Conoco, Inc., 2000 MT 50, 37, 298 Mont. 401, 37, 995 P.2d 990, 37, we held that "intentional and malicious act" as used in § 39-71-413, MCA, is defined according to the plain language of that statute and the definition of "actual malice"contained in § 27-1-221(2), MCA. Departing from previous cases, we stated we would no longer "weave together a patchwork of inconsistent definitions from earlier case law . . . ." Sherner, 37.
After Sherner and nearly two years after the dismissal of her case, Karen filed a motion for reconsideration and relief from that dismissal pursuant to Rule 60(b)(6), M.R.Civ.P. The District Court did not rule on the motion, which was deemed denied after 60 days under Rule 59(d) and (g), M.R.Civ.P. Karen appeals.
STANDARD OF REVIEW
Our standard in reviewing a ruling on a Rule 60(b)(6), M.R.Civ.P., motion for relief from judgment depends on whether or not the judgment is set aside. Karlen v. Evans (1996), 276 Mont. 181, 185, 915 P.2d 232, 235. Where, as here, the judgment is not set aside, only a slight abuse of discretion need be shown to warrant reversal. Karlen, 276 Mont. at 185, 915 P.2d at 235.
DISCUSSION
Was the d
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