Gabriel v. School Dist. #43/17/1994
, 51 St.Rep. 217
Submitted on Briefs January 27, 1994.
We conclude in this case that the District Court erred in granting School District Number 4's motion for change of venue pursuant to § 25-2-126(3), MCA. Accordingly, we reverse and remand for further proceedings.
Richard J. Sasse (Sasse) fell from a school roof in Libby, Montana, while working on a construction project for School District Number 4 (School District). Sasse survived the fall and was taken to Kalispell Regional Hospital in Flathead County, where he subsequently died.
Vicki Gabriel (Gabriel), for herself and as personal representative of Sasse's estate, and for Stacy Sasse, a minor, filed a complaint against the School District in the Eleventh Judicial District Court, Flathead County. The complaint states separate survivorship and wrongful death claims based on alleged wrongful conduct by the School District in Lincoln County.
The School District filed a motion to change venue from Flathead County to Lincoln County. The District Court granted the motion. It determined that all events associated with Gabriel's causes of action occurred in Lincoln County, and that Lincoln County is where the claims arose and where the School District, a political subdivision, is located. Therefore, the court concluded, Lincoln County is the proper place of trial under § 25-2-126(3), MCA. Gabriel appeals.
This appeal involves a determination of whether the court's legal conclusion was correct. We review such legal conclusions de novo. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
At the outset, we conclude that the District Court correctly determined that § 25-2-126(3), MCA, is the applicable venue statute in this case. Section 25-2-126(3), MCA, provides that the "proper place of trial for an action against a political subdivision is in the county in which the claim arose or in any county where the political subdivision is located." The parties do not dispute the School District's status as a "political subdivision" pursuant to § 2-9-101(5), MCA.
The School District contends, in this regard, that no Montana statute specifically provides venue for the separate, but dependent and combined, tort claims of survivorship and wrongful death. While the contention is correct, it is not relevant here. The legislature specifically has provided for venue in actions against political subdivisions such as the School District. Thus, § 25-2-126(3), MCA, is applicable here.
The more difficult issue remains, however: is Flathead County a proper venue for Gabriel's wrongful death claim under § 25-2-126, MCA? If so, the District Court erred. It is well-established that if a plaintiff files in one county where venue is proper, no motion for change of venue can be granted. Section 25-2-114, MCA; Petersen v. Tucker (1987), 228 Mont. 393, 396, 742 P.2d 483, 484-85; Spencer v. Flathead County (1984), 212 Mont. 399, 401, 687 P.2d 1390, 1392.
Gabriel recognizes that Lincoln County is the county where the School District is "located" and where her survivorship claim arose. As a result, she concedes that Lincoln County is a proper place for trial of her claims. However, she asserts that the wrongful death claim arose in Flathead County where Sasse's death occurred and that, as a result, Flathead County also is a proper place for trial under § 25-2-126, MCA. We agree.
We recently addressed a related issue concerning wrongful death actions in Carroll v. W.R. Grace & Co. (1992), 252 Mont. 485, 830 P.2d 1253. We concluded in Carroll that death is a necessary element in a wrong
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