Wentz v. Montana Power Co.11/26/1996
nties in either the county where the cause of action arose or where the county being sued is located. Citing Hutchinson v. Moran (1983), 207 Mont. 330, 673 P.2d 818, we stated:
he authority of a private entity to sue a county now exists solely by virtue of 1972 Mont. Const., Art. II, § 18, and the venue of such actions is determined by the more recently enacted section 2-9-312(2), MCA.
Counties are specifically included within the definition of a "political subdivision" by section 2-9-101(5), MCA.
In suits brought by private entities against counties, the new venue statute, section 2-9-312(2), MCA, supersedes the venue provision contained in section 25-2-106, MCA, and exclusively determines the venue of such actions.
Spencer, 687 P.2d at 1391-92.
In 1985, the Code Commissioner renumbered and combined various venue statutes. Section 2-9-312, MCA, became § 25-2-126, MCA, and subparagraphs (1) and (2), of the former § 2-9-312, MCA, became subparagraphs (1) and (3) of § 25-2-126, MCA, respectively. Unfortunately, § 25-2-106, MCA, became § 25-2-126(2), MCA. Thus, while it appears from the present arrangement of §§ 25-2-126(2) and (3), MCA, that the legislature intended to treat counties as something other than what they are expressly defined to be under § 2-9-101(5), MCA — i.e., political subdivisions — such a conclusion is erroneous and derives solely from legislative oversight in failing to repeal § 25-2-106, MCA, (now § 25-2-126(2), MCA) when § 2-9-312, MCA, (now § 25-2-126, MCA) was enacted and the Code Commissioner's combining and renumbering the statutes. Section 25-2-126(2), MCA, was and remains superseded by § 25-2-126(3), MCA. Spencer, 687 P.2d at 1391-92.
Dr. Anderson's and Rosebud County's arguments to the contrary are without merit; Rosebud County is a political subdivision and is subject to the venue provisions of § 25-2-126(3), MCA, in the same manner that the school district was in Gabriel. Rosebud County may be sued in Yellowstone County since Jean's claim of wrongful death against Rosebud County arose in Yellowstone County, where Gerald died.
Finally, the Clinic and Lands argue that even though § 27-1-501(2), MCA, requires that wrongful death and survivorship claims be combined for purposes of suit, each cause of action remains unique with a separate existence and with distinct attributes. See, Swanson v. Champion Intern. Corp. (1982), 197 Mont. 509, 646 P.2d 1166. Consequently, according to the Clinic and Lands, § 25-2-116, MCA, requires that the court ascertain whether plaintiff selected a proper venue as to both her claims, and if the county selected is proper as to one, but not both, any defendant is entitled to a change of venue which is proper for both claims.
Section 25-2-116, MCA, provides:
Multiple claims. In an action involving two or more claims for which this part designates more than one as a proper place of trial, a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action, subject to the power of the court to separate claims or issues for trial under Rule 42(b) of the Montana Rules of Civil Procedure.
While the Clinic and Lands concede that venue for Jean's wrongful death claim may appropriately lie in Yellowstone County, they argue that Yellowstone County is not a proper place for the trial of Gerald's estate's survivorship claim since the alleged negligent acts complained of all took place in Rosebud County. The Clinic and Lands conclude that since Jean selected an improper venue as to the survivorship claim, she waived the right to choose the place of trial leaving it to any
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