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Wentz v. Montana Power Co.11/26/1996
the Clinic and Lands, contend that Gabriel is not dispositive of the issue in this case. They base their arguments primarily on their interpretation of §§ 25-2-122 and 25-2-126, MCA. Section 25-2-122, MCA, provides in pertinent part:
Torts. (1) Except as provided in subsection (2), the proper place of trial for a tort action is:
(a) the county in which the defendants, or any of them, reside at the commencement of the action; or
(b) the county where the tort was committed. . . .
Section 25-2-126, MCA, provides in pertinent part:
(2) The proper place of trial for an action against a county is that county unless such action is brought by a county, in which case any county not a party thereto is also a proper place of trial.
(3) 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.
Before addressing those arguments, however, it is necessary that we discuss our decision in Gabriel. In Gabriel, decedent was injured and his survivorship action arose in Lincoln County when he fell from a roof while working on a construction project for a school district. His resulting death, however, occurred in Flathead County where he was taken for medical treatment. Plaintiff sued the school district in Flathead County premising venue on § 25-2-126(3), MCA, (a suit against a political subdivision is proper in the county where the claim arose or where the political subdivision is located). Gabriel, 870 P.2d at 1352.
We agreed. We relied on Carroll v. W.R. Grace & Co. (1992), 252 Mont. 485, 830 P.2d 1253, in concluding that since death is the critical and final element in the accrual of a wrongful death action, a wrongful death claim arises for venue purposes where the death occurs. Gabriel, 870 P.2d at 1352. Moreover, we determined that because § 27-1-501(2), MCA, requires that survivorship and wrongful death actions be combined in one legal action and that because, as to this combined action, venue would properly lie either where the survivorship claim or the wrongful death claim arose, plaintiff's choice of a proper venue as to the wrongful death action — the county where death occurred — precluded a successful motion for change of venue to the county where the survivorship action arose. Gabriel, 870 P.2d at 1353 (citing Petersen v. Tucker (1987), 228 Mont. 393, 396, 742 P.2d 483, 484-85). See also § 25-2-115, MCA.
Notwithstanding, on appeal, Dr. Anderson attempts to distinguish Gabriel in arguing that our decision in that case should not be followed. He contends Gabriel is of limited precedential value because that case involved a school district (a political subdivision) and a venue determination under § 25-2-126(3), MCA, which pertains to political subdivisions. Dr. Anderson maintains, that, to the contrary, no named defendant in the instant case is a "political subdivision" (we will address this contention later in this opinion). Rather, he contends (and Rosebud County agrees) that the place of trial in this case is controlled by § 25-2-126(2), MCA, which provides specifically that in an action brought against a county — here Rosebud County — venue lies in that county. Moreover, Dr. Anderson contends that, except for Rosebud County, all of the other defendants are "private citizens" and, therefore, come under the general venue statute dealing with torts, § 25-2-122, MCA, instead of § 25-2-126(3), MCA, dealing with political subdivisions.
In this regard, and while his argument is somewhat difficult to follow, it appears to be Dr. Anderson's position that since t
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