ARBITRATION: Award rejecting claims against bank stemming from its role in $5 million 1031 ranch exchange investment losses confirmed… Lovell.

Kenneth & Lesley Schilling disposed of part of their ranch in 2005 in a $5 million “like-kind” §1031 exchange

through Bobby Parks, a representative of Fintegra and dual employee of Sterling Bank. Under an Investment Services Agreement between Fintegra and Sterling, and a Dual Account Executive Agreement between Sterling, Fintegra, and Parks, Fintegra was responsible for securities activities and Sterling was responsible for banking activities. There was no express contract between Sterling and Schillings. After the collapse of 2008, their investment in the exchanged property lost a significant percentage. They filed a FINRA arbitration action against Fintegra and Parks and sued Sterling in Montana state court claiming fraud under the Montana Securities Act, breach of fiduciary duty, negligent supervision, negligence, misrepresentation & constructive fraud, breach of contract, and breach of the covenant of good faith & fair dealing. Sterling asserted statute of limitations and that there was no fiduciary or other special relationship with Schillings. Although it was not a FINRA broker-dealer or member, it agreed to be joined in the arbitration action in 2012. Schillings’ state action was dismissed. They dismissed Parks in 2013 after he filed bankruptcy. The FINRA arbitration hearing with Fintegra and Sterling was set for 1/14. Schillings settled with Fintegra a few days before the hearing. Following 11 days of hearing, the panel denied Sterling’s motion to dismiss on statute of limitations grounds. In a written decision it denied Schillings’ claims against Sterling, citing the 1994 Interagency Statement on Retail Sales of Nondeposit Investment Products by federal bank regulators, the 2014 FDIC Compliance Manual, the Investment Services Agreement between Fintegra and Sterling, the Dual Account Agreement with Parks, and the Gramm-Leech-Bliley Act. Schillings request vacatur of the award.

It can hardly be said that the arbitrators committed misconduct or any other misbehavior in letting Schillings’ expert opine as a rebuttal witness as to application to Sterling of the GLBA networking exception — that when a bank fulfills the criteria, it “shall not be considered to be a broker” when it enters into 3rd-party arrangements to offer brokerage services on or off bank premises. While a district court has jurisdiction to admit or exclude such testimony under the FRCivP, an arbitrator is not bound by the FRCivP and receives evidence quite liberally. FINRA-ARB2014, Rule 12604(a). Schillings opened the door by eliciting legal opinions from their own expert, Paul Meyer, who testified that Sterling stood in the shoes of Fintegra and owed Schillings duties similar to those of a FINRA broker-dealer.

Schillings assert that the award reflected undue means by Sterling’s alleged failure to assert the networking exception as an affirmative defense. However, even if this arbitration were governed by the FRCivP, this is not a traditional defense that would be required in civil litigation. Further, while an arbitration panel may bar a defense if it was known but withheld at the time of the filing of the answer, there is no evidence that Sterling knew of the networking exception when it filed its answer. Further, it reserved the right to assert any defense that became apparent during discovery, and it apparently did come to light through discovery, and in fact 1 week before the hearing Schillings’ counsel provided Sterling’s counsel a part of the FDIC Compliance Manual that explained the exception. The panel also offered to take further briefing, but Schillings’ counsel declined, preferring to proceed to the panel’s decision. (On the 11th day, Schillings’ counsel informed the panel that if it wanted to take into account this federal law, the arbitration should go back to discovery followed by another hearing. Clearly, the panel decided that counsel could not forbid it from considering relevant federal law, and the arbitrators heard counsel state that he did not want to brief the issue.) Schillings’ argument that they could not be expected to guess that a statutory defense would be advanced fails in the face of the multiple documents governing the transaction that cited the GLBA exception. A month before the hearing, Schillings’ counsel received Sterling’s brief which stated that “Mr. Bley will testify that, contrary to Mr. Meyer’s testimony, a commercial or community bank like Sterling that enters into a third-party agreement with a FINRA broker-dealer to enable the sale of non-deposit investment products to its customers does not take on the obligations of a FINRA broker-dealer.” The GLBA exception was also cited in discovery, so its existence was certainly discoverable by Schillings’ counsel with due diligence. Their studious avoidance of a perfectly obvious defense, followed by the claim of surprise when it was so predictably presented, does not persuade the Court that they did not receive fair notice of the argument. Counsel’s reply brief lifts this controversy into the realm of hyperbole:

Furthermore, nowhere can it be found in any document ever created in the history of the world, as far as the Schillings are aware, that meeting the “networking exception” under the GLBA does anything but exempt the bank from having to register as a broker-dealer.

Besides this narrow reading of the exception being plainly incorrect, Schillings fail abjectly in their duty to present a prima facie claim that established from whence Sterling’s contractual and common law duties arose, if not from its only relationship to the transaction in question (which relationship is exempted from liability by the networking exception). Schillings’ real conundrum is not that they did not have notice of the exception that exempts Sterling from liability for Fintegra’s errors, but that they cannot define its contractual and common law duties without resort to a derivative broker-liability theory. They had ability to discover the exception — an obvious impediment to their case — and with exercise of due diligence could have challenged its application.

As to the allegedly false testimony by Bley, the Court finds that he did not give false testimony:

Q. Are you aware of any legal authorities — law journal articles, broker-dealer publications, bank publications that are scholarly in nature that have come out and said that if a bank enters into a networking arrangement with a third-party broker-dealer, then they can’t be held liable in a situation that we have here today?

A. Melanie Fein Bank Securities’ Activities.

Q. And did you bring a copy of that with you?

A. No. It’s a book about that size. It’s a reference manual. Incidentally, that reference manual didn’t reference any case law either. But it did reference, specifically, the networking exception.

What is clear in hindsight that the question was ambiguous and open to interpretation as to its scope. Bley’s answer was correct as it related to the topic being discussed, which was the impact of the networking exception on Sterling’s liability under the SEA of 1934. Only if it was meant to encompass all of Schillings’ common law and contract claims could the answer have been incorrect. Any misunderstanding results from the ambiguity inherent in counsel’s question and the subsequent attempt to stretch the true meaning of the answer into a falsehood. It is reasonably apparent that the panel could have and probably did understand and interpret Bley’s testimony such that it was true and correct. Thus there can be no fraud — certainly not by clear & convincing evidence. The Court further finds that the result would not have been different had that question not been asked and answered. The federal law would have had to be applied by the panel whether or not any expert testified.

Schillings fail to show that the award should be vacated. There is no gross error on the face of the award or any evidence of intent to disregard the law. Their complaints as to the process do not rise to the level of clear & convincing evidence of fraud, arbitrator misbehavior, of the kind of immoral conduct that procures an invalid decision by undue means.

Schilling v. Sterling Bank, 43 MFR 177, 12/1/15.

Jeffrey Feldman (Feldman Law Offices), San Francisco, and Linda Deola (Morrison, Sherwood, Wilson & Deola), Helena, for Schillings; Bruce Campbell (Miller Nash), Portland, and Danielle Coffman (Crowley Fleck), Kalispell, for Sterling.

WRONGFUL DISCHARGE: Probationary grocery executive’s wrongful discharge claims dismissed… breach of contractual promise of bonus, breach of implied covenant, defamation, IIED/NIED claims survive to extent they are not based on termination, dismissed to extent they are intertwined with termination… Ostby.

(The facts are as alleged in Plaintiff’s complaint project management.)

Lucky’s Market began recruiting Dan Jessup in early 2013 to work at one of its new stores. It promised a “break-even bonus of $10,000 if achieved within the first 90 days of operations.” On 12/12/13 it offered him the position of Store Director for a new store in Billings. Jessup accepted and moved from Nevada, resigning from a long-term, highly compensated, and secure relationship, and began overseeing start-up of the new store. On 5/22/14 Lucky’s HR Manager and its COO suddenly advised Jessup that he was being terminated for unspecified “morale issues.” He had received no prior notice or warnings concerning allegations against him, and Lucky’s would provide no further explanation. He applied for UI and then learned that Lucky’s claimed he was discharged for sexual harassment. Despite the falsity of these accusations, its “responsible officers nevertheless continued to assert the same, in a malicious and bad faith effort, aimed at damaging Plaintiff Jessup’s professional reputation, as well as to thwart even his attempt to obtain unemployment” and “vigorously, relentlessly and maliciously continued to implicate that the plaintiff was guilty of this serious wrongdoing.” Jessup sued asserting breach of contractual promise, breach of implied covenant, wrongful discharge, defamation, IIED, and NIED. Lucky’s moves to dismiss, arguing that the WDA preempts his tort & contract claims because it is the exclusive remedy for a wrongful discharge, and that all of his claims are inextricably intertwined with the termination, and that because he had not finished his probationary period, it need not demonstrate good cause.

Jessup does not dispute that he was in his probationary period, and does not address any of Lucky’s arguments as to this claim, but only discusses his WDA claim based on personnel policy violations. Lucky’s did not need good cause to terminate him during his probationary period. MCA 39-2-904(2)(a). Thus its motion to dismiss will be granted as to good cause.

Jessup argues that even a probationary employee is protected under §39-2-904(1)(c) for a termination in violation of personnel policies, citing Motarie(Mont. 1995). However, §904(2) was amended in 2001 to specify that an employee may be terminated during a probationary period for any reason or no reason. Blehm (Mont. 2010) found that despite previous interpretations, the 2001 amendment specifically provides that employment may be terminated for any reason or no reason during probation. Thus the motion to dismiss the WDA claim will be granted.

Jessup claims that he satisfactorily performed all conditions required to merit the $10,000 break-even bonus, with the store not only having met the break-even threshold but actually exceeding it. He has sufficiently pled this breach of contractual promise claim separately from his termination. Although he alleges that Lucky’s violated the bonus agreement “by having suddenly, unexpectedly and unjustifiably terminated” his employment “without having tendered or paid the earned bonus,” the claim could have been filed regardless of his termination because it is premised on an allegedly earned bonus. Thus to the extent that this claim is not based on his termination, it is not subject to dismissal.

Jessup alleges that his right to earn the bonus contained an implied-in-law covenant of good faith & fair dealing, which required honesty in fact,” which Lucky’s breached by abruptly terminating him, and that it continued to exhibit bad faith through post-termination tactics. The part of this claim that is intertwined with and based on his termination cannot be allowed to proceed, but the remaining part is not necessarily based on his termination, but on the agreement about the bonus. Lucky’s motion to dismiss this claim will be denied to the extent that it is based on the bonus claim, but granted in all other respects.

Jessup’s claimed defamatory statements as to UI are based on and intertwined with his termination. However, the defamation claim also includes allegations separate from the termination — that Lucky’s made statements and representations that were published to co-workers, other food industry employees, and 3rd parties that were per se defamatory because they “clearly impugned his good moral character and professional reputation by falsely implicating that he was guilty of serious and scandalous wrongdoing.” These unspecified allegations are pled separately and independently from his termination, and, depending on the underlying evidence, may not be based on his termination. Without more information the Court must conclude that he has stated a plausible defamation claim that is not intertwined with his termination. The motion to dismiss the defamation claim will be granted to the extent that it is based on statements related to the termination, and denied in all other respects.

Similarly, the motion to dismiss the IIED and NIED claims will be granted to the extent that they rely on the allegedly wrongful termination, and denied to the extent they are based on the remaining parts of the implied covenant and defamation claims.

Jessup v. Lucky’s Market Holdings, 43 MFR 159, 11/20/15.

Michael San Souci, Bozeman, for Jessup; Michael Heringer & Seth Cunningham (Brown Law Firm), Billings, for Lucky’s.

INSURANCE: Insurer breached duty to defend contractor against home defect claims, liable for $192,500 settlement… Court declines to extend insurance exception or DJA to assignee of indemnity right under insurance contract for attorney fees… assignee has standing to bring coverage action, sue under UTPA, despite insurer not consenting to insured assigning rights… insurer’s coverage argument a non-issue following breach of duty to defend… risk retention group irrefutably subject to liability for any proven violations of UTPA, Court disheartened by representations otherwise… amendment by Plaintiff to fix typo granted over insurer’s request for summary judgment for citation to wrong statute… Christensen.

Andrea Wood hired Arturo Botello and Gabriel Curiel in 8/09 to perform improvements to her home in Orinda, Calif. She claims that Botello and/or Curiel committed a number of errors and employed improper construction techniques leading to their abandonment of the project in 1/10. She sued in California 12/27/10, alleging breach of contract, negligence, breach of express warranty, and breach of implied warranty, citing numerous defects and alleging at least $225,000 costs and liabilities. Curiel was insured under a Preferred Contractors Ins. Co. Risk Retention Group CGL policy. The intended term was 1 year, but Curiel’s coverage lapsed 12/21/09 for non-payment. Curiel tendered a defense 6/27/12. PCI responded 8/9, noting that Curiel’s lawyer “confirmed that [Curiel] had no knowledge, nor did he consent to [Botello] using his [contractor’s] license in any matter,” and indicated that there was no coverage for Wood’s claims against Curiel because there was “no occurrence or property damage during the policy period” of 10/31-12/21/09 since “the work was completed in January 2010.” It cited numerous policy provisions but never explained why any precluded coverage, and ultimately denied a defense. Wood and Curiel settled the underlying action 3/6/13. Curiel agreed to pay Wood $17,500 out of his own pocket, confessed judgment for $175,000, and assigned to Wood his rights under the policy. Wood then filed a coverage action against PCI in California state court. Because the policy’s choice of law provision provided that Montana law controlled, the California court dismissed without prejudice. Wood then filed her complaint in this diversity action, asserting declaratory judgment, breach of contract, 1st- and 3rd-party bad faith under Montana’s UTPA §33-18-201, and punitives. Wood requests summary judgment on duty to defend. PCI also requests summary judgment.

Wood asserts that PCI’s “unilateral fact determination” — that no property damage occurred during the policy period — was inconsistent with allegations in the complaint and did not support denying a defense. PCI counters that Curiel had nothing to do with the work on her house, meaning no “occurrence” was attributable to its insured during the policy period; the policy did not cover Curiel’s own negligent or defective work product; and damage to Wood’s home first manifested prior to the policy’s inception. None of PCI’s arguments holds water, so the Court holds as a matter of law that it breached its duty to defend Curiel. Wood pled facts that, if proven, would trigger coverage under the policy’s key provisions. She alleged that Curiel’s and Botello’s negligence resulted in a laundry list of damages and that she contracted with them in 8/09, so that the work began at that time and, construing this date in her favor, reasonably extended into the policy period. On its face, the complaint triggered PCI’s duty to defend.

Moreover, none of PCI’s justifications for denying a defense satisfy the requirement that “unless there exists an unequivocal demonstration that the claim against an insured does not fall within the insurance policy’s coverage, an insurer has a duty to defend.” Staples (Mont. 2004). The evidence simply does not support a conclusion that Curiel had nothing to do with the work. Not only did he confess to and in part personally satisfy the judgment, his construction company is listed as the contractor on the building permit and he filed a mechanic’s lien against the property. The property damage alleged by Wood can certainly be construed to include damage to parts of her home other than the new construction, taking it outside the “your product” or “your work” exclusions and distinguishing cases which PCI cites where faulty workmanship was exclusively at issue. Although Wood noted in the complaint that she contracted with Curiel and Botello in 8/09, PCI has not unequivocally demonstrated that all damage occurred prior to the policy’s 10/31/09 inception date. Reading the complaint liberally, one could easily conclude that damage occurred throughout the time that Curiel and Botello were on the job: 8/09-1/10. If PCI wanted to flesh out any of its theories contesting coverage it should have filed a declaratory action, not make factual determinations after Curiel tendered a defense.

The conclusion that PCI breached its duty to defend Curiel compels the conclusion that it is liable for the amount of the settlement — $192,500 — plus defense costs. Tidyman’s (Mont. 2014). The Court declines to award interest on the underlying judgment.

Wood requests fees incurred in this and the underlying case pursuant to the “insurance exception” to the American Rule and the DJA. Although the Court obviously agrees with Wood to an extent as to her position vis-à-vis the policy, it declines to extend the insurance exception to an assignee of the indemnity right under an insurance contract. It is true that she was forced to sue to light a fire under PCI, but she did so to obtain a benefit owed toCuriel, not to herself. Indeed, although the facts in Brewer (Mont. 2003) are distinguishable — a 3rd-party claimant, not an assignee, sought fees for its declaratory action — the Montana Supreme Court refused to extend the insurance exception to “individuals who are strangers to the insurance contract.”Id. This is so because “the rationale underlying the insurance exception to the American Rule is the existence of a fiduciary duty, and no such duty exists” between the insurer and a 3rd-party claimant.” Jacobson(Mont. 2009). Again, although the assignment places Wood more in the position of a 1st-party claimant, the Court does not extend this notion so far as to transfer PCI’s fiduciary duty under the policy to Wood. For similar reasons, the Court also declines to award fees under the DJA. Montana case law makes clear that an insurer who breaches the duty to defend buys any underlying judgments and defense costs. The Court will keep it at that here.

PCI argues that Wood does not have standing to bring this coverage action because it never consented to Curiel assigning his rights under the policy to her. However, it is fully settled law in Montana that when an insurer fails to uphold its end of an insurance contract, an insured-defendant may validly assign his rights under a policy to a plaintiff.Tidyman’s. Further, the transfer/ assignment provision in the policy, which purports to require PCI’s consent prior to any assignment, is ineffectual given its breach of the duty to defend prior to Curiel assigning his rights to Wood. Windt,Insurance Claims & Disputes(insurer should no longer be able to require compliance with policy conditions after it has materially breached its own contractual obligations); Plitt et al, Couch on Insurance (“The purpose of a no assignment clause is to protect the insurer from increased liability, and after events giving rise to the insuer’s liability have occurred, the insurer’s risk cannot be increased by a change in the insured’s identity.”). PCI’s argument that Wood cannot sue it under the UTPA because she is not an insured similarly fails. As assignee of Curiel’s rights under the policy, she stands in his shoes as the insured under §33-18-242(1). Regardless, “an insured or third-party claimant has an independent cause of action against an insurer” for certain violations of 33-18-201, and Wood is certainly a 3rd-party to the policy here. §33-18-242(1).

The Court in part addressed PCI’s argument that there is no coverage for the alleged property damage in its review of Wood’s motion above. Indeed, PCI takes this argument verbatim from its brief opposing Wood’s motion. While the standard for determining whether an insured’s indemnity obligation has been triggered differs from that governing the duty to defend, PCI nevertheless fails to meet the former. Freyer (Mont. 2013) (insurer breaches the duty to indemnify by failing to provide coverage when the established facts trigger coverage under policy terms, and the extent of the claimant’s damages are undisputed or clearly exceed policy limits). PCI has not proven that the “established facts” bring Wood’s allegations outside the policy. (“Established facts” in this context are facts that are either undisputed or are initially disputed but subsequently determined by the fact-finder). Id. Indeed, having breached the duty to defend, coverage is essentially a non-issue.

PCI’s argument that Wood’s 3rd & 4th causes fail under the UTPA because PCI is not an insurer as defined by statute is an absolute non-starter and demonstrate lack of diligence by PCI. The statutes governing risk retention groups, §§ 33-11-101 et seq, specifically provide that “each risk retention group, its insurance producers, and its representatives shall comply with [the UTPA]” and “each risk retention group shall comply with the provisions of [the UTPA] regarding deceptive, false, or fraudulent acts or practices.” §33-11-104(4), (5). PCI is irrefutably subject to liability for any proven violations of the UTPA, and the Court is disheartened by its representations otherwise.

PCI argues that Wood fails to state a claim under §33-18-202 which governs misrepresentation and false advertising of policies. She notes that this was a typo, and that the cause is based on 33-18-201. It is clear that this claim has nothing to do with misrepresentation and false advertising. Leave to amend to fix this typo is more appropriate than summary judgment for PCI on what is an unintended claim on Wood’s part.

Wood v. Preferred Contractors Ins. Co. Risk Retention Group, 43 MFR 142, 11/6/15.

Randall Colbert & Peter Arant (Garlington, Lohn & Robinson), Missoula, for Wood; Michele Braukmann & Afton Ball (Moulton Bellingham), Billings, for PCI.

SKIER RESPONSIBILITY: Tree wells not “inherent danger or risk of skiing” under statutes at time of 2010 death as made clear by 2015 amendment specifically including tree wells… whether decedent was skiing within his ability at time of accident, whether operator exercised reasonable care to warn of tree wells, decedent’s awareness of tree wells, causation, whether malice existed to support punitives, all fact questions for jury… Molloy.

Niclas Waschle, 16, of Germany, was accepted as a World Experience exchange student in 2010 to live with Fred & Lynn Vanhorn of Columbia Falls project management online. He had indicated that he was a frequent and good skier. Vanhorns advised that they lived near a resort and also skied frequently. He skied 10 days at Whitefish Mountain in the company of Fred Vanhorn. At 11 a.m. 12/29/10 he was found unresponsive below the top terminal of the T-bar 2 lift where he had fallen into a tree well. He died 4 days later. His family and estate sued World Experience, Winter Sports dba Whitefish Mountain Resort, and Vanhorns. Winter Sports was dismissed by stipulation and the Court granted summary judgment for Vanhorns based on volunteer immunity. (MLW 9/12/15). Winter Sports requests summary judgment. Plaintiffs request summary judgment on their negligence claim.

Winter Sports insists that tree wells are an “inherent danger and risk of skiing” pursuant to MCA 23-2-736(4) because they fell under the 2009 definition of “snow conditions as they exist or as they may change, including ice, hardpack, powder, packed powder, wind pack, corn snow, crust, slush, cut-up snow, and machine-made snow.” §702(2)(b). Plaintiffs counter that tree wells did not fall under the plain meaning of the statute as made clear by addition of tree well-specific language in 2015. They are correct. According to Winter Sports’ expert Paul Baugher, “a tree well is the void around the base of a fir tree containing a mix of low hanging branches, loose snow, and air.” As such, a tree well does not fall under any of the express categories of snow enumerated in the statute, nor does it have the same essential characteristics. It is more properly characterized as an absence of snow, making unclear whether it falls under a definition that generally describes different types of snow pack. The ambiguity was reason for ski operators to seek the help of the Legislature in making the law clear. Courts “must presume in construing the statute that the Legislature intended to make some change in existing law by passing it.” Sports Shooting (Mont. 2008). The 2015 Legislature amended the statute to now read: “snow conditions as they exist or as they may change, including ice, hardpack, powder, packed powder, wind pack, corn snow, crust, slush, cut-up snow, and machine-made snow of any depth or accumulation, including but not limited to any depth or accumulation around or near trees or snowmaking equipment.” Winter Sports insists that the additional language merely clarifies the existing language and is not specific to tree wells. That interpretation would improperly render the later-enacted language regarding snow accumulation idle. Courts “must presume that the Legislature would not pass useless or meaningless legislation.” Id. The reading Winter Sports makes would send the Legislature to its amen corner and is inapposite to MCA 1-2-203:

Where a section or a part of a statute is amended, it is not to be considered as having been repealed or reenacted in the amended form, but the portions which are not altered are to be considered as having been the law from the time they were enacted, and the new provisions are to be considered as having been enacted at the time of amendment.

Sponsor Sen. Hoven told the House Business & Labor Committee: “This refers to tree wells. That talks about tree wells.” Accordingly, the statute in effect in 2010 did not cover tree wells, and thus they were not an “inherent danger or risk of skiing” under the Skier Responsibility statutes and were not one of the dangers or risk for which Niclas was statutorily required to be aware.

“Inherent dangers and risks of skiing” include “the failure of a skier to ski within that skier’s ability.” §23-2-702(2)(i). “A skier has the duty to ski at all times in a manner that avoids injury to the skier and others and to be aware of the inherent dangers and risks of skiing.” §736(1). A skier is required to “know the range of the skier’s ability and safely ski within the limits of that ability so as to negotiate any section of terrain or ski slope and trail safely and without injury or damage” and to “know that the skier’s ability may vary because of ski slope and trail changes caused by weather, grooming changes, or skier use.” §736(2)(a). Winter Sports argues that because Niclas fell, he failed to ski within his ability and for him to have been in the position in which he was found in the tree well he would have had to have fallen prior to reaching the tree well and slid into it. Under that reasoning, anytime an Olympic skier falls it proves that he is skiing beyond his ability even if he had previously completed a faster, flawless run. Plaintiffs insist that there is no evidence that he was skiing beyond his abilities or that he intentionally left the trail. They assert that the tree well itself could have been the cause of his fall and even experienced skiers fall prey to them. They also present evidence that he was a careful skier who generally stayed on groomed runs. Accordingly, whether he was skiing within his ability at the time of the accident is a fact question for the jury.

Winter Sports owed Niclas a duty of reasonable care. §23-2-733. Plaintiffs argue that it breached that duty by failing to warn of the tree well hazard and take actions to limit the risk. A material fact issue exists as to whether it failed to act consistent with its duty of care, particularly given the catastrophic consequences of encountering a tree well. Plaintiffs have presented evidence that it was on notice of the danger of tree wells prior to 2010 as a result of 4 previous deaths and early publications and lectures including by Baugher, and that it knew of available industry signage on tree wells and of “daily” tree well incidents on the T-Bar 2 lift. Winter Sports concedes that 4 deaths related to tree wells have occurred over the last 60 years, but challenges whether such information amounts to notice as no tree well deaths had occurred at Whitefish Mountain since 1999 and none of those was near the T-Bar 2 lift. It also notes that it had 2.9 million visitors 1999-10 with no tree well deaths. It nevertheless acknowledges 3 tree well deaths since Niclas’s death. It further insists that it was not aware of specific tree well signage before 2010 and that the information provided to ski areas was more of a general notice than a directive. Inherent in its argument is that at that time no one knew the extent of the risk. That lack of knowledge can cut 2 ways, raising the question as to whether the risk was foreseeable to Niclas.

A fact dispute exists as to whether Niclas was aware of the tree wells on T-Bar 2 that day. While he had been warned of the danger of tree wells during a safety talk with Vanhorns, there were no specific or general warning signs at the ski hill disclosing the dangers of tree wells. There is also no proof that he had skied the particular run before.Mead (Mont. 1994) (reversing summary judgment where there was no evidence that skier had skied the trail recently enough that he should have been aware of exposed rock face). And what Niclas knew as he approached the hazard and what he may have seen are unknown. Hoar(Va. 1998) (skier unable to testify due to injuries as to whether edge of run was plainly visible). Additionally, a storm had just occurred, dumping new powder and arguably changing the nature of the runs he may have been accustomed to.

Whether Winter Sports should have exercised greater care in warning of tree wells or reducing the risk and whether Niclas should have been aware of the condition that caused his death and exercised greater care to avoid it are issues for the jury. Nor is causation subject to summary judgment. The parties have presented evidence both supporting and refuting the effectiveness of warnings. As argued by Plaintiffs, Niclas was a cautious skier known to ski groomed runs. And, pursuant to §23-2-736(2)(d), a skier had the obligation to “obey all posted or other warnings and instructions of the ski area operator.” However, Winter Sports insists that warnings would not make a difference as they had warnings in place 4 years later when 2 more skiers died following tree well immersions. A reasonable juror could find that Niclas would have heeded a sufficient warning, preventing his injury, or that a warning would not have changed his behavior or even that the warnings are inadequate.

Winter Sports argues that there is no evidence of actual malice to support punitives. Only upon clear & convincing proof that it had knowledge of facts, or intentionally disregarded facts, that created a high probability of injury to Niclas and deliberately proceeded to act in a conscious or intentional disregard of that high probability of injury, may it be found guilty of actual malice. McKay (Mont. 2009). Plaintiffs argue that it had knowledge of the lethal hazard posed by tree wells and purposely advertised and promoted powder skiing without sufficient warning. They also argue that it knew that the storm that day posed increased risk of tree well formation and that it has never closed the T-Bar 2 lift in major powder conditions despite the potential for tree well formation. Plaintiffs have put forth sufficient proof that Winter Sports may have had knowledge of the tree well hazard and approached it in such a way that a jury could find that its conduct was malicious as defined by 27-1-221. Summary judgment on this is not appropriate.

Immediate appeal of the statutory interpretation of the 2009 “inherent dangers and risks” provision as it relates to tree wells is appropriate as it “involves a controlling question of law as to which there is substantial ground for difference of opinion” and “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 USC 1292(b). The joint motion to stay trial pending appeal of the dismissal of Vanhorns is also granted.

Waschle v. Winter Sports, 43 MFR 120, 11/10/15.

Steven Johnson (Church, Harris, Johnson & Williams), Great Falls, and Channing Hartelius & Jeffrey Winter (Hartelius, Durocher & Winter), Great Falls, for Plaintiffs; Mikel Moore & Christopher DiLorenzo (Moore, Cockrell, Goicoechea & Axelberg), Kalispell, for Winter Sports.

VOLUNTEER IMMUNITY: Host family immune from liability for exchange student’s death from falling into tree well… Molloy.

German Niclas Waschle, 16, applied for placement as an exchange student with World Experience in 2010. He indicated that he was a frequent and good skier. Fred & Lynn Vanhorn of Columbia Falls applied as host parents and advised that they lived near a ski resort and skied frequently. Niclas wrote Vanhorns indicating that he liked skiing a lot, his last ski trip had been to the Alps, and he had improved his skills. World Experience arranged for him to live with Vanhorns the 2010 fall semester. In 9/10 Fred Vanhorn contacted Niclas’s mother about purchasing a pass for Whitefish Mountain Resort. She provided funds. Niclas skied 10 days at Whitefish Mountain in the company of Fred Vanhorn. At 11 a.m. 12/19/10 he was found unresponsive by other skiers below the top terminal of the T-bar Ski lift where he had fallen into a tree well. He died 4 days later. His family and estate sued World Experience, Whitefish Mountain Resort, and Vanhorns. Vanhorns request summary judgment, principally relying on 42 USC 14503(a) and MCA 27-1-732 volunteer immunity.

Plaintiffs insist that World Experience’s limited role in the placement process, absence of documentation notifying Niclas’s mother that the host family was a volunteer for World Experience, the direct communication between Niclas’s mother and Vanhorns, and Vanhorns’ implicit assumption of the parental role all indicate that they had a more direct relationship with Plaintiffs. But even drawing all reasonable inferences in Plaintiffs’ favor, there is no genuine dispute as to Vanhorns’ relationship with World Experience. The Federal Volunteer Protection Act was enacted out of concern that willingness of volunteers to act would be deterred by fear of negligence claims. A finding that volunteers who seek to serve beneficiaries of a 501(c)(3) organization, rather than promote the entity itself, are not entitled to immunity would eviscerate the purpose of the statute: “to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions by reforming the laws to provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.” §14501(b). Vanhorns volunteered not to benefit World Experience but to benefit the exchange students it served. Their role could not be effectively done unless they communicated directly with Niclas’s mother and assumed general portions of the parental role. Those necessities do not alter the relationship between Vanhorns and World Experience.

The complaint itself alleges that Vanhorns were within course & scope as volunteers for World Experience when their alleged misfeasance occurred. Plaintiffs’ allegations are grounded in the idea that Vanhorns breached their parental duties, resulting in his death. To the extent such duties may have existed, they would have arisen only through Vanhorns’ responsibilities as host family, even if World Experience was not aware of choices they made day-to-day as to that role. Because they are immune from liability for ordinary negligence pursuant to Montana’s volunteer protection statute, summary judgment is granted in their favor as to those claims.

The immunity under the Montana statute does not apply to willful or wanton misconduct. 27-1-732(1). Plaintiffs insist that a jury could find that Vanhorns knew of the tree well deaths at Whitefish Mountain and the dangers of tree wells, yet did not take steps to reduce that risk project plan. However, they have failed to present evidence controverting Vanhorns’ testimony that they warned Niclas of the dangers of tree wells and skiing alone. For this reason alone, summary judgment should be granted to them. But in any event, Plaintiffs have no proof that the risk Niclas faced was so highly probable and known to Vanhorns as to make their alleged failure to warn rise to willful or wanton misconduct. Even if they did not warn of the dangers of tree wells and skiing alone, no reasonable jury could conclude that it was apparent or reasonably should have been apparent that letting Niclas ski alone without warning him of the inherent dangers of skiing was likely to result in his fall into a tree well and subsequent death and that they embraced that known risk with indifference to the consequences.

Summary judgment for Vanhorns.

Waschle v. Whitefish Mountain Resort, World Experience, and Vanhorn, 43 MFR 97, 9/4/15.

Steven Johnson (Church, Harris, Johnson & Williams), Great Falls, and Channing Hartelius & Jeffrey Winter (Hartelius, Durocher & Winter), Great Falls, for Plaintiffs; Mark Williams & Susan Miltko (Williams Law Firm), Missoula, for Vanhorns.