INSURANCE: Motion by Plaintiff alleging bad faith settlement of vehicle death case to exclude certain testimony & opinions of insurer’s hybrid and retained experts mostly denied… Molloy.

This is a bad faith action arising out of a High Country Paving loaded equipment trailer coming unhitched and colliding with another vehicle in 8/16, killing the driver and seriously injuring the passenger. High Country’s insurer United Fire ultimately settled with the 3rd-party victims for $3 million policy limits without securing a release for High Country. High Country then settled with the 3rd parties for an additional $1.275 million of its own money and then sued United Fire alleging bad faith related to the settlement and breach of contract for failing to pay CGL coverage.

The case was removed to this Court in 9/18. On 5/9/19 this Court certified a question to the Montana Supreme Court regarding United’s duty to obtain a release prior to paying policy limits. That Court issued its decision 12/31/19 clarifying Montana law regarding an insurer’s obligations when catastrophic injury may exceed insurance limits in a clear liability case. In the meantime each party sought to compel disclosure of materials identified in the other’s privilege log and also sought summary judgment. On 11/4/19 this Court granted both motions to compel. High County sought immediate relief by scurrying to the 9th Circuit through a petition for mandamus. Although the case was stayed pending resolution of that writ, the Court ruled on the pending summary judgment motions, determining that factual disputes remained regarding High Country’s bad faith claim but ruling in its favor on its contract claim. The 9th Circuit denied High Country’s mandamus petition 4/2/20. The case is set for trial 10/19/20. High Country seeks to exclude certain testimony and opinions of United’s hybrid and retained experts.

On 6/17/19 United disclosed as hybrid witnesses Guy Rogers, Jon Wilson, Katie Huso, and Nick Pagnotta plus a serial list of “Additional Hybrid Witnesses” including Clifford Edwards, Christopher Edwards, John Edwards, Mary Farjadi, Neal Scharmer, and “other representatives of United Fire” who may have formed relevant opinions. On 10/1/19 United disclosed its retained expert Gary Zadick. These individuals are expected to opine as to United’s duty to its insured and the value of the 3rd-party claims against High Country. In light of the answer to the certified question and this Court’s summary judgment ruling, the sole question remaining for trial is whether “the reasonable settlement value of this case exceeded $3 million.” As a preface to considering High Country’s arguments, it is important to note that the methods described are precisely what lawyers, adjusters, and insurers do every day in PI cases. Indeed, the very premise of High Country’s case is the valuation dispute of lawyers and adjusters.

Guy Rogers is a Montana attorney with extensive experience in civil litigation defense. United anticipates that he will provide opinions in 3 areas, only one of which is still at issue: “Whether the reasonable settlement value of the claims against High Country exceeded policy limits.” High Country unpersuasively seeks to exclude this opinion on the ground that it is not reliable and lacks sufficient foundation. It argues that his approach to claim valuation does not meet Daubert requirements because it is “not a scientific or precise exercise.” United responds that Daubert does not apply to non-scientific expert testimony. Neither party is entirely correct. While the rigid factors relevant to a scientific opinion need not be adhered to, courts are required “to make some kind of reliability determination to fulfill their gatekeeping function.” Hangarter (9th Cir. 2004). The factual basis for Rogers’s valuation opinion is stated as:

Mr. Rogers has also been involved in defending numerous personal injury and wrongful death cases, and has defended and tried cases against the Edwards Law Firm. He is familiar with the types of damages claimed and experts routinely retained by the Edwards Law Firm and other top-tier plaintiffs’ firms in personal injury and wrongful death cases. Mr. Rogers has also been the mediator in numerous personal injury and wrongful death cases. Based on the information provided to him by Mr. Scharmer, and his knowledge and experience, Mr. Rogers was of the opinion that it was reasonably clear that High Country’s liability to Mr. Edwards’ clients was in excess of $3,000,000.

He further explained in his deposition that a number of factors go into the “hopper” when valuing a wrongful death case, such as existing jury verdicts, venue, and prior experience in the field, as well as who the plaintiff is, the injuries sustained, and the plaintiff’s family situation. While he conceded that it would not be possible to provide a “precise dollar amount” and “no one has a crystal ball,” he consistently explains his process for determining a reasonable settlement range. The soundness of his methodology is supported by the discussion in Gibson (Mont. 1984), which shows the process lawyers engage in when assessing case values.

High Country further argues that the uncertainties surrounding the value of general damages make it an improper area for expert testimony. This argument highlights the unique procedural posture of the case. Unlike a usual case involving general damages, the jury will not be determining the actual value of the 3rd-party claims, but the reasonableness of an insurer’s valuation of a case. Thus it will need information about what United knew (facts) and how it made its decision based on those facts (opinions). Contrary to High Country’s characterization, Rogers’s approach is not an “amorphous thought experiment,” but a sufficiently reliable practice to be presented to a jury. Moreover, the fact that no one can accurately predict jury verdicts only further supports the importance of expert testimony in this field. The testimony offered by Rogers speaks to how an insurer values a case in certain circumstances. Simply saying that case valuation is impossible does not help a jury answer that question.

High Country further challenges the foundation of Rogers’s testimony, arguing that his opinions are based on a 45-minute call with Neal Scharmer, United’s Chief Legal Counsel/VP. Its brief shows that neither United nor Rogers has attempted to obfuscate the basis of his knowledge or the limits of his factual review. As argued by United, his brief review of the case is ripe for cross; as is High Country’s contention that Rogers did not follow his own methodology. Rogers is permitted to testify as a hybrid witness consistent with his disclosure.

Jon Wilson is likewise a Montana attorney with extensive experience in insurance coverage and civil defense litigation and is expected to testify to the same general subjects as Rogers. According to High Country, he has no firsthand knowledge of the case because he “never spoke to anyone at United Fire and never offered any advice” and argues that his opinions merely bolster or vouch for those offered by Rogers. Wilson’s testimony presents a close question. The record indicates that he was not directly involved in United’s case valuation, but was part of Rogers’s valuation methodology. After he was approached by United, Rogers consulted with Wilson. The question is whether the opinions formed and shared by Wilson during that consultation can be considered opinions formed “during the course of treatment.” Goodman (9th Cir. 2011) (discussing the boundaries under Rule 26(a)(2)(C) for a treating physician). The answer is a cautioned yes. Wilson’s disclosure shows that he formed his own contemporaneous opinion about the value of the case based on the information provided by Rogers. Tarter (D.Mont. 2019) (“When an expert is to offer testimony limited to his or her percipient knowledge i.e. knowledge and opinions formed at the time an earlier evaluation or report was made, the expert is treated as a non-retained expert.”). There is no indication that he offered an opinion or authored a report after the fact. Thus Wilson is permitted to testify to the opinion he formed at that time and its factual basis. However, he is prohibited from framing his testimony in terms that merely bolster Rogers’s opinions. Huawei (N.D. Cal. 2018).

Katie Huso is a Montana attorney with experience in PI and coverage claims. She was United’s coverage counsel. She is expected to testify to the same subject areas as Rogers and Wilson, as well as to the extent of coverage available under High Country’s policy. Given the narrow issues remaining, only her valuation opinion is relevant. High Country argues that it is improper “bolstering” and deficient under Rule 702 and Daubert because she simply changed her tune regarding settlement after speaking to Rogers. She stated in her deposition that she believed the claims were worth at least $3 million but was reluctant to assign a specific dollar value. However, High Country is correct that neither her disclosure nor her deposition provides a basis for her valuation of the claim. Nor does it appear that she provided a contemporaneous valuation. Nevertheless, she provides necessary factual background for how United processes claims such at issue here. Her fact testimony regarding her actions in this case, as well as who she spoke to and why, is permitted.

United’s hybrid disclosure as to “additional hybrid witnesses” states:

There are numerous fact witnesses who may provide opinion testimony in this case, including A. Clifford Edwards, Christopher Edwards, John Edwards, Mary Farjadi, Neal Scharmer, and other representatives of United Fire who formed opinions as to High Country’s liability, the reasonable settlement value of the third-party claims, and United Fire’s duties under Montana law. United Fire believes that the opinions that will be expressed by these witnesses are contained in the documents that have or will be produced in this case in discovery.

These witnesses include the plaintiff’s attorneys in the underlying matter and United’s employees. High Country seeks to exclude any such testimony on the grounds that this is not an actual disclosure. It is correct. Even assuming that the short summary identifies the subject of the testimony, it does not include “a summary of the facts and opinions to which the witness is expected to testify.” Rule 26(a)(2)(C)(ii). It is not sufficient to merely reference other unidentified discovery documents. Ibey (D.Mont. 2013). And because United unpersuasively maintains that its disclosure is adequate given the other discovery, there is no basis to conclude that the inadequate disclosure is harmless. Yeti by Molly (9th Cir. 2001) (placing the burden of proving harmlessness on the party facing sanctions. Nonetheless, these witnesses are permitted to testify as fact witnesses to matters limited to what they did and why they did it.

High Country also challenges a retained expert, Gary Zadick. Similar to the hybrid witnesses, Zadick is an experienced insurance litigation attorney. His opinions relate to an insurer’s duties to its insured, as well as the potential settlement value of 3rd-party claims. “The purpose of the detailed and specific disclosure requirements of Rule 26(a)(2)(B) is to provide full information so the parties can prepare for effective and efficient discovery.” Hash (D.Mont. 2009). Thus an expert report should include the “substance” of the testimony and its reasons. Id. “The report should offer the ‘how and why’ of the results, not mere conclusions.” Id. “Bald conclusions of an expert witness, or brief statements of ultimate conclusions with no explanation of the basis and reasons therefore, or the absence of a statement of how the facts support the conclusions, do not satisfy the Rule 26(a)(2)(B) requirements.” Id. High Country argues that Zadick’s report lacks the “how” and the “why.”

The format & content of Zadick’s disclosure is unique. After a brief factual section (that includes some opinions), his opinions are outlined in the “answers” to a series of “questions.” Of the 22 opinions proffered in this manner, only opinions 6 & 7 are relevant to the valuation issue. While High Country is correct that these opinions are somewhat conclusory, he adequately presents his valuation process earlier in his report. Its challenges to his analytical framework are better addressed on cross.

Nor is High Country’s improper supplementation argument compelling. United disclosed a rebuttal report for Zadick 10/30/19. Rebuttal reports are limited to evidence “intended solely to contradict or rebut evidence on the same subject matter identified by another party” in an expert report. Rule 26(a)(2)(D)(ii). Zadick explains that insurers must evaluate claims based on their investigation and information provided by the injured party’s counsel. He addresses the relevant considerations and explains why some facts are speculative and others are determinative. But he also specifically states his disagreement with High Country’s experts as to the ability to predict damage amounts and what types of considerations play a role in lowering or increasing total calculations. His opinions are appropriately “rebuttal.”

High Country’s motion is granted insofar as Huso and the “Additional Hybrid Witnesses” are limited to providing fact testimony at trial, and denied in all other respects.

High Country Paving v. United Fire & Casualty, 44 MFR 221, 4/17/20.

Jeffrey Tierney, Robert Baldwin, and Trent Gardner (Goetz, Baldwin & Geddes), Bozeman, for High Country; Jon Dyre (Crowley Fleck), for United.

WRONGFUL DEATH: Magistrate’s recommended summary judgment rulings in MVA death case involving independent contractor distributor of bakery’s products whose driver was allegedly under influence of marijuana and issues of agency, subservant employment, joint venture, non-delegable duty under Federal Motor Carrier Safety Regulations, negligent selection of independent contractor, punitives… DeSoto.

Daizey Kinn was driving north on US 87 with her mother Shannon McBee and young daughter as passengers 4/2/18. Allen Scarlett was driving south in a BNT Distributing vehicle when he lost control on a turn and struck Kinn’s vehicle. McBee died and Kinn was injured.

BNT supplies food products to grocery stores and other small stores. US Bakery dba Franz Family Bakeries is a major producer of bread products, operating in several western states with bakeries throughout the region and some of those products are delivered from out-of-state facilities to Montana. BNT approached US Bakery in 5/16 to see if it would be interested in having someone distribute its products in the territory that BNT was servicing. They entered into a Distribution Agreement authorizing BNT to sell US Baker products in several Montana locations. It identified BNT as an “independent contractor with management and control of its own business.” Prior to 12/17, US Bakery employed a sales rep who serviced accounts in Lewistown, Stanford, Moore, Hobson, and Eddie’s Corner. BNT added that area to its business in 12/17 and began distributing US Bakery products on a route from Billings to Lewistown which included accounts previously serviced by the US Bakery sales rep as well as other accounts in Harlowton and Ryegate that were not previously serviced by the US Bakery sales rep.

At the time of the MVA, Scarlett was driving a BNT vehicle distributing US Bakery products to retailers along the Lewistown Route including the Lewistown Albertsons, the largest customer of US Bakery on that route. US Bakery entered into a Scan Based Trading System Agreement with Safeway, which operates Albertsons stores, identifying US Bakery as the supplier of the bread products sold at the Lewistown Albertsons. To facilitate scan based trading, it maintained the operating system and provided BNT with handheld devices to place its orders. US Baker collected payment directly from Albertsons for the products sold there, then provided BNT a credit for that amount.

Kinn made a claim against BNT and sued US Bakery 2/4/19. Her original complaint alleged that Scarlett was an employee-in-fact and/or agent of US Bakery and that US Bakery was vicariously liable for Scarlett’s negligent conduct, and that US Bakery and BNT were in a joint venture and US Bakery was jointly liable for Scarlett’s negligence. She asserted claims against US Bakery for negligence, wrongful death, and survival and requested punitives. She filed an amended complaint adding a theory of direct liability alleging that US Bakery failed to exercise reasonable care in selection of BNT as an independent contractor and a theory of vicarious liability alleging that because US Bakery operates vehicles under a public license it had a non-delegable duty of safety and is liable for BNT’s negligence.

Kinn requests summary judgment that Scarlett was transporting goods in interstate commerce and was therefore subject to the Federal Motor Carrier Safety Regulations, and for summary judgment that US Bakery and BNT were in a joint venture. US Bakery requests summary judgment on liability and punitives which would effectively dispose of all 6 claims.

Kinn cites Watts v. MRL (Mont. 1994) for the proposition that when “an employee is a subservant of a company that was, in turn, a servant of a principal, the employee is deemed a servant of the principal,” and argues that if BNT was a servant of US Bakery, Scarlett is a servant or employee of US Bakery. But while Watts relied on common-law principles, Kinn does not cite any Montana authority applying the subservant theory outside the FELA context as a basis for tort-related vicarious liability. But even assuming that the theory is viable, her evidence is insufficient to raise a material fact issue regarding an employment relationship between Scarlett and US Bakery as there is insufficient evidence that US Bakery controlled or had the right to control his physical conduct on the job. BN principal Bryan Halpin confirmed in his deposition that US Bakery did not have any control over Scarlett’s day-to-day work activities. While Kinn points to evidence that he used scanning devices, trays, and delivery racks provided by US Bakery, that is not sufficient to find that US Bakery controlled or had the right to control his physical conduct on the job, while the undisputed evidence demonstrates that BNT hired him, paid his wages, set the delivery schedule, owned the van, and otherwise had the right to control his day-to-day work. Thus her subservant theory of employment fails as a matter of law.

Kinn also argues that there is sufficient evidence of an agency relationship between US Bakery and BNT such that US Bakery can be held vicariously liable for BNT’s negligence, acting through its driver. However, the Court agrees with US Bakery that, under the Butler (Mont. 2000) factors, the undisputed evidence demonstrates that it did not have control over BNT sufficient to establish an actual agency relationship. For example, as to the 1st factor — right or exercise of control — Kinn points to evidence that US Bakery required BNT to use pricing negotiated between US Bakery and Albertsons, use a proprietary device for ordering products and inventorying deliveries to Albertsons, submit to a scan-based trading system used between Albertsons and US Bakery, and comply with the stale date schedule. However, she overlooks the facts as they relate to the many other customers serviced by BNT. At the beginning of 2018, it had 27 accounts on 2 different routes including the Lewistown Route. While US Bakery set the price for products sold at the Lewistown Albertsons and 2 other accounts, BNT set the price for products sold to all its other customers, and BNT set its own delivery schedule, placed orders for all of its customers, decided what US Bakery products to sell, set the prices for the US Bakery products it sold for the vast majority of its customers, and did not need US Bakery’s permission to add or discontinue servicing other accounts.

Kinn has presented no evidence establishing a material fact issue as to whether US Bakery and BNT intended to create a joint venture, even as to the Lewistown Albertsons. Because “intent is crucial to the determination of whether a joint venture exists,” Pearson (Mont. 2016), US Bakery is entitled to summary judgment on her joint venture theory.

Because the evidence establishes that US Bakery is a private motor carrier the cases holding that a common carrier is liable for the negligence of its independent contractors do not apply. The Court agrees with US Bakery that the Thomas (D.Mont. 1958) rationale in holding that a motor carrier may be vicariously liable under Montana law for the negligence of an independent contractor applies only to common carriers, not to private carriers like US Bakery. Thus US Bakery’s motion for summary judgment on Kinn’s non-delegable duty theory of liability should be granted.

Assuming that BNT is an independent contractor, Kinn’s theory of direct liability alleges that US Bakery failed to exercise reasonable care in selecting BNT. She alleges, inter alia, that it knew that BNT would be delivering its bread products to multiple retailers on a 350-mile roundtrip while “using a commercial motor vehicle with a gross vehicle weight in excess of 10,000 lbs,” and that Scarlett was under the influence of marijuana and BNT did not screen him for drug use before hiring him. Her negligent hiring claim rests in part on the allegation that US Bakery “should have verified that the subcontractor it hired was complying with the FMCSRs.” However, because it did not have a non-delegable duty to ensure that BNT was complying with the FMCSRs, Kinn cannot maintain a negligent hiring claim based on US Bakery’s failure to verify that BNT was complying with those regulations. However, she further alleges that US Bakery failed to exercise reasonable care in selecting BNT as an independent contractor because it did nothing to ensure that it would employ qualified drivers and failed to determine whether it had enacted any safety plan, drug & alcohol policy, or driver training. US Bakery has not shown that it is entitled to JML on this aspect of her claim.

Kinn alleges that US Bakery acted with actual malice “by intentionally disregarding facts that created a high probability of injury and deliberately proceeding to act with indifference to the high probability of injury” to McBee, Kinn, “and any other persons foreseeably on the roadway.” She accuses US Bakery of claiming that BNT “was an independent contractor to avoid the cost of implementing driver safety programs, drug testing, proper driver training programs, and background checks,” and that the MVA “occurred as a direct result of a poorly trained driver who was under the influence of controlled substances at the time of the wreck.” US Bakery argues that it is entitled to summary judgment on this claim for punitives on the ground that it cannot be held liable for the negligence of BNT and its driver under any of Kinn’s theories. However, there are material fact issues precluding summary judgment for US Bakery on her claim for negligent selection of an independent contractor. While it remains to be seen whether she will be able to prove conduct upon which a jury could award punitives, the claim is sufficient to survive summary judgment.

The Court recommends that summary judgment be granted for US Bakery as to Kinn’s agency, joint enterprise, and non-delegable duty theories of liability, but denied as to her negligent hiring theory and claim for punitives; that Kinn’s motion for summary judgment as to joint venture be denied; and that Kinn’s motion for summary judgment as to interstate commerce, survivorship and US Bakery’s motion for summary judgment as to wrongful death damages be denied as moot.

The parties’ motions in limine will be addressed as needed after Judge Christensen has ruled on this F&R.

(The Court was notified 5/11/20 that the case settled.)

Kinn v. United States Bakery, 44 MFR 222, 4/28/20.

Lance Jasper & Robert Bell (Reep, Bell & Jasper), Missoula, for Kinn; Paul Haffeman & Stephanie Hollar (Davis, Hatley, Haffeman & Tighe), Great Falls, for US Bakery.

INDIANS: County lacks jurisdiction to grant proposed RV park access over street in the former Big Arm townsite on Flathead Reservation… Christensen.

Lori Lundeen owns 40 acres bordering the western boundary of the former Big Arm townsite, which she hopes to develop as an RV park. With the blessing of Lake Co. Board of Commissioners she began constructing a road through Big Arm, connecting a gravel road, 7th St., with her property. She has asserted that an alternate route from a private road outside the townsite — Walking Horse Lane — is financially infeasible. Her road follows the rough contours of E St. as it was platted in 1913. E St. borders Blocks 17 & 30. Block 17 is the site of the former Big Arm school, patented to the County in 1918. No lots in Block 18 were sold, so the entire block was restored to the Confederated Salish & Kootenai Tribes. Lundeen applied to the County for a permit. Although Tribal representatives raised concerns about access to the RV park through Big Arm, the Board issued its conditional approval of Wild Horse RV Resort Subdivision in 5/18, and Lundeen began advertising for the RV park and commenced construction of the road. On 5/13/19 the Tribes placed a gate blocking access to her lot from 7th St. and BIA issued a notice of trespass to Sandry Const. The Tribes brought this action seeking a declaratory judgment “quieting [their] beneficial interest to the real property, including streets, alleys, and public reserves (held in trust by the United States for the benefit of the [Tribes]) in the Big Arm Townsite and determining that Defendants have no right, title, or interest in or to the real property or any public right of way.”

I. Title was not transferred.

The Tribes’ primary argument is that there was no transfer of title to the roadways. Defendants argue that the County holds title to the roadways depicted on the 1913 plat — or at minimum, that the Tribes no longer hold title. Thus the Court considers whether title is retained by the US in trust for the Tribes or was transferred through the Flathead Allotment Act or the 1906 appropriations bill rider. There is no question that from the time of the Hell Gate Treaty in 1855 through the platting of Big Arm, title was held by the US in trust for the Tribes and that the US remained trustee throughout the period of allotment. Indeed, the Flathead Allotment Act provides that “the United States shall act as trustee for said Indians to dispose of said lands and to expend and pay over the proceeds received from the sale thereof only as received.” Because the US had no obligation to sell reservation lands under the Flathead Allotment Act, there could be no transfer of title with the passage of that law. And the majority of the lots in Big Arm were never sold. If title to the Big Arm roadways had been transferred, the transfer must have occurred when the plat was issued in 1913. Indeed, this is the crux of Defendants’ argument — that because Congress authorized the sale of individual lots, it also authorized the dedication of the streets to public use, and such dedication actually occurred when the townsite was platted — “to hold otherwise would be illogical because nobody would purchase a lot in a townsite without access.” However, tribal lands cannot be divested by implication. “The whole purpose of trust land is the protection of land from unauthorized alienation.” Imperial Granite (9th Cir. 1991). Thus “only Congress can divest a reservation of its land and diminish its boundaries.” Solem (US 1984). “Once a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.” Id.

The Flathead Reservation was not diminished by the Flathead Allotment Act or the related 1906 townsite-specific legislation. Solem explored the distinction between “those surplus land acts that diminished reservations and those acts that simply offered non-Indians the opportunity to purchase land within established reservation boundaries.” Congress must “clearly evince an ‘intent to change boundaries’ before diminishment will be found.” Id.; Kneip (US 1977).

Although “explicit language of cession and unconditional compensation are not prerequisites for a finding of diminishment,” they are the most important factors. Id. Neither is found here. The Flathead Allotment Act provides that the US was to remain as trustee and had no obligation to sell the surveyed lands. Compensation was not “unconditional” but was tied to sale of lots; if the lots did not sell there was no transfer of land and money. Congress did not clearly intend to diminish the Reservation, and creation of the 1913 plat did not by itself remove the lands from tribal control.

II. Lake Co. does not have jurisdiction to unilaterally construct a new road in Big Arm.

The County and Lundeen argued that the County has jurisdiction over the roadways, even if it does not have title. Their position relies heavily on letters between Interior officials discussing jurisdiction over roads throughout Indian country. They contend that the agency materials nearly unanimously demonstrate “the ‘general rule of law’ that ‘approval of a townsite plat by the Secretary of the Interior, in accordance with law and sale of lots thereunder constitutes a dedication to public use of the streets and alleys shown on the plat without the necessity of special words of dedication on the plat.'” It is true that administrators’ “manner in dealing with unalotted lands” “has some evidentiary value.” Solem. However, Defendants’ reliance on such materials is misplaced for several reasons.

First, the materials do not constitute factual evidence. The officers repeat, often verbatim, the same general legal opinion that a platted street is dedicated to public use, but they give no attribution for that opinion outside of other Interior letters and memoranda. The Court cannot accept this ipse dixit simply because it appears to have been popular among many Interior officials in the early and mid-20th Century. What is more, some of the statements are plainly incorrect. For example, one letter states that “when an area is platted and recorded, the streets, alleys, and other public use areas are no longer considered property of the United States or subject to the administrative jurisdiction of the Secretary of the Interior.” But we know that this cannot be true in Big Arm because the US remained as trustee and had no obligation to sell lands under the Flathead Allotment Act.

Second, the record is not “unanimous.” For example, Defendants rely on statements by Field Solicitor Roy Allan in 1960. But he also wrote in 1957: “There is nothing in the [Flathead surplus land acts] by which the Congress has authorized the title in the United States in the streets, roads, etc., in unincorporated townsites and villa sites on the Flathead reservation to be transferred to anyone.” And that opinion was repeated in other agency materials throughout the years. Where administrative materials are “rife with contradictions and inconsistencies,” they can “be of no help to either side.” Solem.

Third, the materials do not hold the meaning attributed to them by Defendants. It is not merely the platting of a townsite that dedicates the roadways to public use, but the platting and subsequent sale of lots. The officials’ approach is functional, tying jurisdiction over public use areas to residents’ status as tribal members or non-Indian county residents. For example, the author of a 1960 letter directed toward “restoration to tribal ownership of streets, alleys and public reserves” in 2 other Flathead Reservation townsites explained that owners of lots adjacent to the roadways must petition under Montana law for abandonment of the roadways. Defendants claim that these letters support Court jurisdiction over the roadways in Big Arm, but they say only that a county road remains a county road unless and until the appropriate legal procedures are followed to abandon it.

The opinions in Defendants’ exhibits are indifferent to the precise question here — jurisdiction to build a previously undeveloped road through what is today tribal land. Tellingly, one letter includes language (ignored by Defendants) puzzling through that issue: “Restoration of unused dedicated areas to tribal ownership simultaneous with the restoration of undisposed lots would, if possible, be desirable.” Another official wrote that “when [platted roads] are no longer used for [a public purpose], they revert to tribal jurisdiction.” Like the other Interior communications, they are not particularly persuasive but they show that even this relatively weak authority does not support Defendants’ position.

In more practical terms, it hardly makes sense that a 100+-year-old plat, which marks long-abandoned plans and a rightfully discarded assimilationist policy, can give a county authority to unilaterally approve a new road through tribal land today. The parties do not discuss extensively the effect of the restoration of most of the lots in Big Arm to tribal ownership, but withdrawal of lots from the townsite in 1930 and 1956 is significant. Solem (considering “on a more pragmatic level,” “who actually moved onto opened reservation lands”).

Lake Co. and Lundeen argue that it defies logic to open up lots for sale to non-Indians but not authorize local road construction. The Court does not necessary disagree. Here, though, their logic works against them because the adjacent lots have been restored to tribal control; if a county has jurisdiction over roads in a non-Indian townsite, then surely the tribal government is entitled to the same treatment. In fact, it is highly unlikely that Lake Co. truly wants jurisdiction over the roadways in Big Arm to the degree that jurisdiction brings attendant governmental responsibilities — which by all accounts the tribal government is performing. All Lake Co. appears to want is to allow Lundeen to build an access road in the location most convenient for her business.

If Defendants seek to build a road in Big Arm, there is a procedure through which individuals and state and local governments may petition to develop roadways through Indian country. “The Secretary of the Interior is authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways through any Indian reservation.” 25 USC 311. Today, a state or local government must submit a thorough application to BIA to establish a road under §311. 25 CFR 169.102. While the “requirements deemed necessary” have changed over the years, there is no dispute that the US has not given permission to Lake Co. and/or Lundeen to construct E St. In fact, she does not even seek permission from the US or the Tribes. There may have been a time when Lake Co. (or its predecessor Flathead Co.) could have developed E. St. However, assuming that it once had that authority, it did not develop the roadway during that time. The question now is whether Lundeen and Lake Co. can build a road through tribal lands today without first filing a petition to the US or even seeking permission from the Tribes. The statutes, administrative materials, and historical record give a clear answer: No.

Although the determination that Lake Co. lacks jurisdiction over E St. is dispositive, the Court considers the balance of Defendants’ arguments, and concludes that the Hell Gate and Lame Bull treaties do not give the County an unrestricted right to build roads through the Reservation and the Tribes’ win in a 1971 Court of Claims case in which they were compensated $6,066,668.78 for the Big Arm townsite does not foreclose this litigation under principles of claim preclusion, issue preclusion, estoppel, and payment/accord & satisfaction.

Confederated Salish & Kootenai Tribes v. Lake Co. Board of Commissioners and Lundeen, 44 MFR 223, 4/16/20.

James Goetz (Goetz, Baldwin & Geddes), Bozeman, and Daniel Decker, John Harrison, and Shane Morigeau (CSKT Legal Dept.) for CSKT; Dep. Lake Co. Atty. Walter Congdon and Deana Bennett, Spencer Edelman, and Luke Holmen (Modrall Sperling), Albuquerque, for the Commissioners; J.R. Casillas & Jenna Lyons (Datsopoulos, MacDonald & Lind), Missoula, for Lundeen.

RAILROADS: Engineer properly terminated for speeding, not in retaliation for being outspoken advocate of predictive scheduling to alleviate fatigue… Christensen.

BNSF hired Keith Jones as a conductor and engineer in 2006. His employment ended in 2010 but he was rehired in 2/11. He was diagnosed with sleep apnea prior to his first term of employment, and BN was aware of his diagnosis when he was rehired. During the summer of 2016 his sleep deteriorated. He saw Pat Burns of Glacier Headache & Sleep Medicine, who recommended a new sleep study to ensure that his CPAP was operating properly. In response to Jones’s request that Burns support his claim for medical leave, Burns also noted his concern that — as reported by Jones — BN’s scheduling practices may not sufficiently accommodate his sleep needs.

In 9/16 Jones had a conversation with superintendent James Pino, which BN describes as a “coaching and counseling” session and Jones classifies as “a talking to” that made him feel “intimidated.” Nevertheless, it is clear that they talked about Pino’s expectations regarding communications with dispatchers. It was prompted by Pino’s understanding that Jones had made “comments to a Dispatcher in a very argumentative way, and then somebody else on the radio responded with like a cat meow, saying wow, and then Jones replied to that and said yep that’s right, Stone is playing games.” (According to Pino, Jones at times refers to himself as “Stone.”) Pino played the conversation to Jones, explaining his expectation that Whitefish crewmembers be respectful even when dispatchers were frustrated, and Jones agreed to act appropriately.

Early the next month Jones submitted several forms documenting his belief that BN’s scheduling increased crew fatigue to the detriment of safety. He turned in Safety Issue Resolution Process forms on 3 different days, writing that “inaccurate line ups contribute to fatigue issues, creating unsafe working conditions.” He submitted a 4th form stating that his safety concern arose from late modifications to his schedule. On 11/2 he filled out a union fatigue monitor. These forms are submitted to the union, which shares the information with FRA and may be used during negotiations.

In the early morning of 11/5/16 Jones was tired, having been called in at 2:45 a.m., well before his scheduled time of 5:25. He arrived less than 17 hours after his last shift, and he had a sinus infection and was unable to get high-quality sleep. At one point after his train left Whitefish it was traveling 5 mph due to fog and a dispatcher, apparently irritated by the slow progress, stated to Jones, “You guys are unbelievable.” The dispatcher notified Jones that the train would be meeting multiple trains at Belton. Jones replied, “You might as well keep us here all night.” The train reached Belton just before 5 a.m. Jones informed the dispatcher that he would take a nap — permitted under BN policy — while waiting for the other trains to pass. When his train was cleared to leave the Belton siding, it resumed east to Essex, where it was again sidelined to allow oncoming trains to pass. Jones informed a dispatcher that he was tired, explained why, and said he would like to take “a nap or two.” The dispatcher informed head of dispatch Chris Lucero of the discussion. Lucero contacted Pino and they decided that Jones and his conductor should be ordered back to Whitefish and replaced by another crew. The train was delayed while the swap occurred.

Jones filled out another fatigue monitor 11/6. Pino called him into his office along with Jones’s union chairman Brent Wetsch and a local chairman from the SMART-TD union. Pino played recordings of the conversations between Jones and the dispatchers and initiated a discussion about whether a disciplinary investigation should be initiated. According to Wetsch, “Pino was the only individual present at the meeting who thought that Jones violated any rules or that a disciplinary investigation should be launched into Jones’s conduct.” On 11/8/16 BN notified Jones of an imminent investigation “for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged discourteous and quarrelsome behavior including alleged intent to cause train delay” at Whitefish. The investigation was held 1/11/17 after Jones filled out 3 additional fatigue monitors and one SIRP form. Following the hearing, BN imposed a “Level S” (serious) discipline.

On 12/5/16 Jones informed BN that he was not sleeping well and did not feel that he could safely perform his job without seeking medical care. The next day BN wrote him: “You have been removed from service pending an assessment of your fitness for duty. In our conversation you have stated that you do not feel safe to work as you don’t feel that you are getting proper sleep.” Before returning he would need to submit results of a sleep study and 30 days of downloaded information from his CPAP. His CPAP was titrated as a result of the study and his doctor released him for work with no restrictions 1/4/17. He returned, but filled out 4 fatigue monitors and 3 SIRPs in late January and February.

According to Pino, the conductor stated 5/10/17 that he warned Jones of an upcoming 25 mph restriction before leaving to use the restroom, and that when he came out he noted that the speedometer was at 31-32 and he asked Jones if they were in the restricted location and Jones replied, “I don’t know,” and that he began to slow the train. When the conductor asked how fast they had been going, Jones allegedly said, “Don’t worry, we did not go federal.” Jones disputes that he knew of the restriction before entering the zone. The employee who reviewed braking records verified that “heavy dynamic braking” was applied at 36 mph in an effort to slow to the required 25 mph.” BN notified FRA of an event involving speeds of 10+ mph over the limit, resulting in an automatic 30-day suspension of Jones’s engineer certification. The conductor also received a 30-day suspension but he was allowed to return. Jones disputes the determination that the speed was greater than 10 mph over the limit. A formal investigation by Rick Stauffer, Director of Administration for Montana, resulted in a 2nd Level S discipline. Brian Clunn, an executive in BN’s headquarters, reviewed the formal investigation regarding the 5/10/17 event and — because it was Jones’s 2nd Level S and because of the perceived seriousness of the violation — recommended dismissal. Montana manager Jon Gabriel adopted the recommendation. Jones was terminated 7/17/17.

2 other events which do not fit nearly into the above chronology are relevant. In 2014 then-GM Dan Fransen held a town hall for employees at which Jones made a comment about the lack of predictive scheduling and its effect on crew fatigue — the same issue raised in the SIRPs submitted throughout 2016-17. Jones claims that Fransen was extremely upset by his comment. In 6/16, Jones reported an unsanitary bathroom.

Jones sued in 8/18 alleging that his termination was unlawful under the Federal Railroad Safety Act — that BN took adverse actions when it investigated and disciplined him in 1/17 and when it terminated him in 7/17, and that he was fired for reporting conditions causing crew fatigue, seeking treatment for and notifying BN of his sleep apnea, and reporting an unsanitary bathroom. BN requests summary judgment. Jones concedes that he was terminated for having 2 Level-S disciplines, but contends that they were motivated by his “legitimate safety complaints” as to how BN’s policies impacted fatigue. At heart, his claim is that he was an outspoken advocate for predictive scheduling and that BN disciplined and terminated him for that advocacy. He also argues — less vigorously — that he was disciplined for reporting unsanitary bathroom conditions.

I. Jones’s fatigue-related reports.

BN argues that Jones did not report a hazardous safety or security condition because federal law sets the minimum standard for safety and BN met that standard and that his fatigue is largely attributable to his apnea which is not a “hazardous condition” under the FRSA. It contends that he has not established a prima facie case of retaliation, and that it would have terminated him even had he not engaged in protected activity.

The Court disagrees with BN’s theories that he did not engage in protected activity. Other statutory schemes do not preclude this suit, and his complaints are protected under FRSA to the degree that they relate to BN’s scheduling practices. But it agrees with BN on the other points, either of which would be sufficient. BN is entitled to summary judgment because the “circumstances are [not sufficient] to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.” 29 CFR 1982.104. Moreover, given the decisionmakers’ lack of knowledge of his reports, BN has shown “by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of [the protected activity].” 49 USC 42121(b)(2)(B)(ii).

A. Preclusion.

BN contends that Jones’s fatigue-related complaints are not protected under FRSA because its policies & procedures were consistent with the Hours of Service Act and the Federal Rail Safety Improvement Act. However, the fact that its scheduling practices were allowed under federal law does not mean that Jones was not disciplined for “reporting, in good faith, a hazardous safety or security condition.” 49 USC 20109(b)(A).

B. Hazardous safety conditions.

BN argues that Jones did not engage in protected activity when he filled out safety reports regarding its scheduling practices and fatigue because his own “personal fatigue and non-work-related sleep apnea” are not “hazardous safety conditions” within the meaning of FRSA. The Court agrees that FRSA is indifferent to reports of allegedly unsafe conditions that fall outside a railroad’s control. Hunter (3d Cir. 2016; Williams (SD Miss. 2017) (“Reading the statute to include self-reported illnesses as hazardous safety conditions would expand protected activity to include any ailment, including drunkenness, fatigue, or even personal incompetence, that an employee believes might affect his or her ability to perform the essential functions of the job.”). Thus Jones cannot succeed to the degree that he reported that his apnea made him too tired to safely work. He cannot claim that his conversations with dispatch 11/5/16 were reports of a hazardous safety condition when the hazard was his exhaustion, particularly when that exhaustion was due in large part to not only his apnea but a sinus infection. The Court agrees that BN’s scheduling practices may have worsened his fatigue, but it does not logically follow that he reported its scheduling practices by asserting that he was tired and wanted to nap. However, some of his reports targeted BN’s scheduling practices. He is protected under FRSA for his submission of SIRPs requesting predictive scheduling and discussing fatigue.

C. Prima facie case.

Although Jones did engage in protected activity, the “circumstances [are not] sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.” 29 CFR 1982.104. It is true that there is a temporal connection between his altercations with dispatchers 11/5/16 and the investigation, but there is no reason BN should have viewed these conversations as reports of “a hazardous safety or security condition” given that his personal exhaustion is not by itself a safety condition as contemplated by FRSA. He claims that the first dispatcher was openly hostile and that he merely asserted his right to nap while the train was waiting for the tracks, consistent with BN policy. This may be true, but it does not demonstrate retaliation. A railroad may take action against an employee that could conceivably be wrongful under other legal schemes without running aground of FRSA. Koziara (7th Cir. 2016) (FRSA “does not punish railroads for disciplining (including firing) employees unless the discipline is retaliatory.”). There is a factual dispute as to whether Jones was “discourteous and quarrelsome” and acted with the “intent to cause train delay” in violation of BN policy, but the dispute is not material. If there is an inference to be drawn from the crew replacement, it is that BN was legitimately concerned about Jones’s ability to safely operate the train. In any event, the soundness of that decision is not at issue.

Jones argues that retaliation should be inferred from a comment he made in the 2014 town hall when he raised his concern as to the effect of erratic schedules on fatigue, pointing to a declaration from Wetsch that “this event was likely the genesis of BNSF’s retaliatory conduct toward Jones.” He states that Fransen “took Jones out of the safety meeting to chastise him and was openly hostile.” Wetsch’s declaration is the strongest support for Jones’s retaliation claim, but it is not strong enough. There is not even temporal proximity between the 2014 meeting and 2016 disciplinary actions, nor does the record support a finding that Stauffer, the decisionmaker as to Jones’s 1st Level S, was aware of the meeting. And Fransen left BN in 3/17, months before the 2nd Level S action. And even Jones does not argue that the 2nd Level S was not serious enough to warrant a 30-day suspension. He claims that BN may not have done everything in its power to ensure that the speeding was significant enough to mandate its report to regulators. His argument stemming from the speeding is that he would not have been fired had he not already had the 1st Level S on his record. However, because a jury could not conclude that the 1st action was retaliatory, he has not established prima face retaliation under FRSA.

D. Termination in the absence of protected activity.

Summary judgment is alternatively appropriate because the evidence shows that Jones would have been terminated even had he not been an advocate for predictive scheduling. Clunn recommended dismissal and Gabriel adopted it. Nothing in the record supports a finding that they were aware of — let alone relied on — Jones’s reports regarding fatigue.

Jones argues that data regarding similarly situated employees defeats summary judgment on this point. He points to “BNSF comparator data regarding employees charged with violating the same or similar rules as Jones that would have mandated a Level-S incident or review of BNSF comparator data identifying whether or not BNSF employees who received 2 or more Level-S violations were dismissed.” However, where the decisionmakers were unaware of the employee’s safety reports, comparator data is unnecessary and irrelevant. BN does not need to “prove similar or identical issues received the same discipline” because it has proven that Jones’s safety reports did not factor into the decisions to discipline him.

II. Unsanitary bathroom.

Jones also alleges that BN retaliated against him for “reporting a hazardous safety condition of an unsanitary bathroom on a locomotive in or around June 2016.” Assuming that this qualifies as a protected activity under FRSA, he has not established prima facie retaliation. To succeed at step 1 under FRSA, an employee must show that “the circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.” 29 CFR 1982.104. No such inference is logical here. Jones claims only that a juror could conclude that BN was made aware of the unsanitary bathroom when he reported it to Pino and management employee Brian Scheffield. However, there is no reason to make the jump from them hearing his report and Stauffer’s disciplinary actions 9 months later or Clunn’s and Gabriel’s 6 months after that.

III. Punitives.

Because BN is entitled to summary judgment on Jones’s substantive claims, his claim for punitives necessarily fails.

BN’s motion for summary judgment is granted. All other motions are denied as moot.

Jones v. BNSF, 44 MFR 224, 4/29/20.

William Jungbauer (Yaeger & Jungbauer Barristers), St. Paul, for Jones; Joey Breitenbach, Michelle Friend & Ben Rechtfertig (Hedger Friend), Billings, for BN.

RAILROADS: Engineer’s claim that he was terminated in retaliation for reports of crew fatigue, lack of PTC on train that was in a red block incident, and failure to adequately train conductors rejected on summary judgment… Christensen.

William Vasquez began as a BNSF engineer in 1995 in Whitefish. He was terminated in 1/17 and reinstated in 11/19. In the summer of 2016 he signed a “low performance waiver” acknowledging acceptance of “Level S” (serious) discipline for logging low hours which included 30 days suspension and 3 years probation. His supervisor James Pino suggested that he would not be terminated even if he were to commit a serious offense after signing the waiver, including if he went through an absolute red signal, which requires the train to be stopped before reaching the signal. He reported for work in the early morning of 11/28/16 in Hauser, Idaho. Working along conductor Doug Malley, he noted that they should go no faster than 45 mph due to the cargo load. However, the Positive Train Control was set to 55. Resetting it required coordination with dispatch, and Malley — who as conductor was charged with communicating with the dispatcher — indicated that they were having trouble setting the system up. The dispatcher instructed Malley that they could leave without engaging PTC. Although Malley initially agreed, Vasquez was concerned, and they attempted to reengage dispatch several times without success. The train left the yard without PTC engaged at 5:25 a.m. As it approached West Libby early in the afternoon Malley informed Vasquez of a yellow signal, which Vasquez knew meant that the train should be slowed to 30 mph and a red signal may be approaching. BN asserts — and Vasquez disputes — that there was a red signal at the East Libby switch. They passed that signal and continued 2,030 feet before stopping at the Libby Depot. The failure to stop before the red signal triggered an investigation into Vasquez and Malley, as well as Vasquez’s automatic decertification as an engineer by FRA. During the investigation, Vasquez stated that the red block incident would not have occurred had the PTC been engaged which “would have warned me that that signal was coming” or had he been working with “an experienced, qualified conductor” who “would have said something like, red block, red block, you know, or he would have dumped it, or you know, there would have been something there that would have happened,” adding:

The problem is we’re getting so many new guys out here that I’m familiar with the territory and don’t have, I’m basically up there, not only me, other engineers and the way they’ve got these pools running, people are running this way, going to Spokane and back, they haven’t even been there that much, and basically I’m having to train them as I’m doing my own job, so I’m doing multiple, multiple things up there, but what, guys that aren’t qualified or experienced.

Based in part on Vasquez’s previous conversation with Pino regarding the effect of his earlier Level S discipline, BN offered a waiver, which his union had previously requested. Vasquez testified at his deposition that he understood that he would not be terminated if he signed the waiver, but had nonetheless refused to do so. He was terminated 1/27/17 for his 2nd Level S. The Public Law Board found that less discipline than termination was appropriate, and he was reinstated 11/19/19 without pay for his time out of service. He sued alleging retaliation under the FRSA, which protects employees from adverse employment actions triggered by good faith reports of hazardous safety conditions. He claims that he was not terminated for the 2nd Level S but for his reports of crew fatigue, lack of PTC on the train in the red block incident, and failure to adequately train conductors. BN requests summary judgment as to all 3 reports.

Fatigue.

In the fall of 2016 Vasquez submitted several “wage claim forms” after being called into work early. They are the means by which crewmembers request reclassification of their hours in order to increase their pay. In his comments, his strongest complaint was that BN did “not manage the pool properly” and “back to backed Whitefish crew out of Whitefish to protect Havre jobs.” He did not claim to have been fatigued on these trips, and he did not state that BN’s alleged mismanagement of scheduling caused an unsafe condition. In his Complaint, he did not allege that he was terminated for fatigue reports, nor did he make such an allegation to OSHA in the mandatory administrative proceeding. Indeed, the basis for this claim appears to have arisen nearly a year after he filed this suit, during his 7/24/19 deposition, when he gave his attorney the wage claim forms which he retrieved from a box in his truck. BN argues that it is entitled to summary judgment regarding Vasquez’s fatigue complaints because (1) he failed to exhaust administrative remedies, (2) the decisionmakers who terminated him were not aware of his complaints, (3) he did not engage in a protected activity, and (4) his allegedly protected activities did not contribute to BN’s decision to terminate him. BN is entitled to summary judgment under (1) and (3), either of which would be sufficient, and thus the Court does not reach the other 2 theories.

Failure to exhaust.

Given that the parties were unaware of the basis for Vasquez’s claim regarding crew fatigue prior to 7/19, there can be no dispute that his fatigue-related FRSA claim was not presented to OSHA. The question that remains is legal: must he exhaust administrative remedies as to every alleged protected activity prior to bringing an FRSA action in Federal Court? The Court does not decide that, as a matter of law, a plaintiff can never raise a new theory of retaliation in an FRSA action. However, in this case Vasquez’s failure to bring his safety related claim to OSHA bars its consideration now. Neither OSHA nor BN was “placed on notice that it was required to investigate” BN’s alleged retaliation for his safety complaint. Windom (M.D. Ga. 2013); Bozeman (N.D. Ga. 2006).

Protected activity.

Vasquez did not “report, in good faith, a hazardous safety condition” when he submitted wage claim forms requesting higher pay. 49 USC 20109(b)(A). The Court rejects BN’s theory that FRSA is indifferent to complaints regarding crew fatigue. As addressed at length in Jones v. BNSF (44 MFR 224), federal law does not preclude Vasquez’s retaliation claim when the other statutory schemes governing fatigue — the Hours of Service Act and the Federal Rail Safety Improvement Act — complement rather than override FRSA. Additionally, a request for a change in BN scheduling policy due to fatigue could give rise to a viable claim under FRSA. Here, however, there was no such request. Unlike Jones, Vasquez did not submit a form dedicated to alleging safety issues. He submitted wage claim forms requesting additional pay consistent with the CBA. While he did claim to have been called in early and out of rotation, he never claimed to have been fatigued or raised any safety concerns. No reasonable factfinder could conclude that he reported a hazardous safety condition when he asked for additional pay and neither requested a change in BN policy to protect safety nor suggested that he or any other crewmember had been fatigued.

PTC.

Vasquez claims that he was terminated in retaliation for a complaint regarding PTC on his train. However, he never made a complaint, but merely attempted to reset the PTC. His attempt through Malley to contact dispatch cannot conceivably be understood as a safety complaint.

Training.

Vasquez contends that he was terminated in retaliation for comments during the red block investigation — that conductors had not been adequately trained and he had to train them as he was doing his own job. However, he was not requesting BN to change its policies to improve safety, but suggesting that his workload prevented him from adequately performing his job. Moreover, the investigation was already underway when he made self-serving statements explaining why the event triggering discipline occurred. Nothing suggests that these statements moved the needle one way or the other, particularly in light of BN’s proffered waiver.

Punitives.

Because BN is entitled to summary judgment on Vasquez’s substantive claims, his claim for punitives necessarily fails.

BN’s motion for summary judgment is granted.

Vasquez v. BNSF, 44 MFR 225, 5/29/20.

William Jungbauer (Yaeger & Jungbauer Barristers), St. Paul, for Vasquez; Joey Breitenbach, Michelle Friend & Ben Rechtfertig (Hedger Friend), Billings, for BN.