 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wentz v. Montana Power Co.11/26/1996
he school district in Gabriel was a "political subdivision," § 25-2-126(3), MCA, by its language, specifically provided for venue where the claim "arose." However, since none of the defendants are "political subdivisions" then the County is entitled to be sued in Rosebud County under § 25-2-126(2), MCA, and all defendants are entitled to be sued in Rosebud County where the tortious acts were "committed" under § 25-2-122(1)(b), MCA. Relying on Howard v. Dooner Laboratories, Inc. (1984), 211 Mont. 312, 688 P.2d 279, Dr. Anderson contends that a tort is "committed" (as opposed to when it "arises") where all negligent acts take place. Thus, reasons Dr. Anderson, since all the alleged negligent acts of which Jean complains took place in Rosebud County, the tort of wrongful death was "committed" there. According to Dr. Anderson, determining when the wrongful death action accrues does not address itself to the legal issue of where that tort is "committed" for purposes of analyzing a case in which the general tort venue statute applies as opposed to a venue statute that speaks in terms of where the claim "arises."
We are not persuaded by Dr. Anderson's argument. In fact, we rejected a similar argument in Gabriel, wherein we stated:
Nor is the School District's reliance on Howard v. Dooner Laboratories, Inc. (1984), 211 Mont. 312, 688 P.2d 279, well placed. Howard involved application of the general tort statute providing for venue in the county where the tort "was committed" to a situation involving medical malpractice. Addressing the word "committed," we determined that the tort occurred where the medical negligence took place. Howard, 688 P.2d at 282. Howard did not address either a post-Carroll wrongful death claim or the specific language contained in § 25-2-126, MCA.
Gabriel, 870 P.2d at 1353.
While § 25-2-126(3), MCA, and § 25-2-122(1)(b), MCA, are not consistent in the language used, the point is that the statutory cause of action for the tort of wrongful death cannot come into existence until death occurs. Carroll, 830 P.2d at 1254-55. Thus, it necessarily follows that the tort of wrongful death cannot "arise," "accrue" or be "committed" until the critical and defining element of this claim — death — occurs. Gabriel, 870 P.2d at 1352. The location where death occurs is determinative for venue purposes of where the tort of wrongful death "arises," "accrues" or is "committed." In this case, it is undisputed that Gerald died in Yellowstone County. Accordingly, it is equally clear that the tort of wrongful death for which Jean has filed suit arose, accrued and was committed in that County.
Likewise, we find no merit in Dr. Anderson's and the County's argument that § 25-2-126(2), MCA, rather than § 25-2-126(3), MCA, applies to Rosebud County. Without question, these two subparagraphs of the statute are contradictory. However, we addressed this problem over a decade ago and resolved this issue in Spencer v. Flathead County (1984), 212 Mont. 399, 687 P.2d 1390.
In Spencer the plaintiff filed an action against Flathead County and the State in Lincoln County alleging wrongful arrest and invasion of privacy in Lincoln County on a Flathead County warrant. The defendants moved to change venue to Flathead County on the basis that § 25-2-106, MCA, controlled the venue of actions brought by non-governmental entities against counties and established venue exclusively where the county being sued is located. Spencer, 687 P.2d at 1391. Section 25-2-106, MCA, was adopted in 1877.
We noted, however, that § 2-9-312(2), MCA, adopted in 1973, established venue in actions brought by non-governmental entities against cou
Page 1 2 3 4 5 6 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|