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Day v. Montana Power Company3/20/1990
Rehearing Denied April 12, 1990
Submitted December 12, 1989
A jury in the District Court for the Second Judicial District, Silver Bow County, awarded Ted and Doris Day damages resulting from a fire caused by the negligence of Montana Power Company's (MPC) employee. The jury awarded $350,000 to both Days for property destruction, $25,000 to Doris Day for personal injury and $450,000 to Ted Day for emotional distress. From this verdict, MPC appeals the $450,000 emotional distress award and Days cross appeal. We reverse in part and affirm in part
In the process of installing underground electrical service to an adjacent structure, MPC employee Mark Dickhausen negligently ruptured a gas service line leading to TJ's Family Restaurant in Red Lodge. Natural gas migrated along the underground service line, accumulated in the restaurant and was later ignited, presumably by a pilot light. The resulting fire and explosion completely destroyed the restaurant owned by plaintiffs Ted and Doris Day
In an action filed February 24, 1987, the Days claimed damages for destruction of property, emotional distress, nervous shock and mental anguish, loss of their established way of life, punitive damages based on MPC's violation of the covenant of good faith and fair dealing, lost profits and for Doris Day's physical injury and suffering. The District Court permitted Days to amend their complaint and base their punitive damage claim on MPC's negligence in violating provisions of the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C.App. §§ 1671 et seq. (1982)
Days moved to compel discovery of MPC's claim file arguing that the file lacked the status of a privileged communication Subsequent to hearing on the matter, the District Court ruled in favor of MPC. Several months later, Days requested the issuance of subpoenas duces tecum to C.J. Woods and Byron Mazurek respectively. Both were employed by MPC in its Claims Department The subpoenas demanded production of all "memoranda, reports, letters, photographs, sketches, interviews, written estimates or evaluations and all other documents or copies thereof" prepared in relation to the fire at TJ's. Upon MPC's failure to produce a report prepared by Byron Mazurek, Days moved that MPC be held in contempt. The District Court denied the motion
On December 2, 1988, the jury returned a verdict awarding the Days $350,000 for the destruction of the restaurant building, its contents, lost profits and related expenses; $25,000 to Doris Day for physical injury and suffering; and $450,000 to Ted Day for emotional distress, nervous shock and mental anguish. The jury found the Days were not entitled to either punitive damages or damages for loss of their established way of life. Following entry of judgment, MPC moved for judgment notwithstanding the verdict, relief from judgment and reduction of award, all of which were denied by the District Court
The following issues are raised on appeal and cross appeal:
1. Did the negligent act of MPC's employee substantially invade a legally protected interest of Ted Day thus justifying an award of damages for emotional distress?
2. If this Court adopts Restatement (Second) of Torts § 46 (1965), as the standard for recovery of emotional distress damages would Ted Day be entitled to the same?
3. Did Ted Day introduce sufficient evidence to sustain an award of damages for his emotional distress?
4. Did the District Court properly instruct the jury regarding apportionment of damages?
5. Did MPC waive its right to attack the jury award of $450,000 to Ted Day for emotional
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