October 13 2009
DA 08-0600
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 328N
KUCK TRUCKING, INC., a Montana corporation,
Cross-Claimant and Appellant,
v.
BRENNTAG WEST, INC., a successor in interest to DYCE CHEMICAL, INC., a Montana Corporation, et al.,
Cross-Defendants and Appellees.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 2007-0443 Honorable Gregory R. Todd, Presiding Judge Cause No. DV -2005-048 Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kenneth D. Tolliver, Matthew B. Gallinger, Tolliver Law Firm, P.C., Billings, Montana
Mark L. Carman, Carman Law Office, P.C., Billings, Montana
For Appellees:
Kyle A. Gray, Robert L. Sterup, Holland & Hart, LLP, Billings, Montana
Kim K. Burke, Daniel R. Warncke, Taft, Stettinius, Hollister, LLP, Cincinnati, Ohio
Submitted on Briefs: August 26, 2009
Decided: October 13, 2009 Filed:
__________________________________________ Clerk
2 Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number, and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Kuck Trucking, Inc. appeals from four orders of the Thirteenth Judicial District
Court, Yellowstone County, entered in two separate cases: Weiss v. Dyce Chemical and
Burbank v. Brenntag West, Inc. These cases were consolidated on appeal. We affirm.
¶3 In June 2000, the Weiss plaintiffs filed a class action complaint against Kuck and a
number of other defendants, including Brenntag West, Inc. (as successor in interest to
Dyce Chemical, Inc.), Brenntag, Inc. (as successor in interest to HCI USA Distribution
Companies), and Stinnes Corporation (as successor in interest to HCI Americas, Inc.)
(collectively HCI). The complaint alleged that the defendants had contaminated the soil,
water, and air in the town of Lockwood, Montana. In April 2004, HCI settled with the
Weiss plaintiffs and was dismissed from the suit. Kuck remained a party to the lawsuit,
as the plaintiffs alleged that Kuck was responsible in part for the contamination. In May
2007, Kuck filed a cross-complaint against HCI seeking damages for violation of the
Montana Constitution, strict liability, trespass, negligence, nuisance, wrongful occupation
of land, unjust enrichment, and indemnification/contribution. Kuck also sought punitive
damages.
3 ¶4 In January 2005, after HCI had been dismissed from the Weiss lawsuit, the
Burbank plaintiffs filed a similar class action complaint. Again, Kuck and HCI were
named as defendants. In November 2006, Kuck asserted the same cross-claims against
HCI in the Burbank lawsuit as it had asserted in the Weiss lawsuit. HCI settled with the
Burbank plaintiffs in April 2008.
¶5 On September 11, 2007, the Weiss Court granted HCI’s motion to dismiss Kuck’s
cross-complaint. The court observed that once parties settle, under § 27-1-704, MCA,
co-tortfeasors are barred from bringing contribution claims against the settling parties.
Moreover, the court noted that pursuant to M. R. Civ. P. 13(g), cross-claims may only be
asserted against co-parties. By the time Kuck filed its cross-complaint in 2007, HCI was
no longer a party to the Weiss lawsuit. Lastly, the court determined that the claims raised
by Kuck in its cross-complaint were barred by the statute of limitations.
¶6 On April 7, 2008, the Burbank Court granted summary judgment in favor of HCI
and dismissed Kuck’s cross-complaint. The court determined that Kuck’s claims were
barred for two reasons. First, the court concluded that Kuck’s claims were barred by the
statute of limitations. Under § 27-2-102(3)(a), MCA, the statute of limitations begins to
run when a party knew or should have known the facts constituting its claim. According
to the court, Kuck’s various tort claims were subject to two and three-year statutes of
limitations. Because Kuck filed a pleading in 2001 alleging that contaminated
groundwater flowed from Dyce Chemical onto Kuck’s property, Kuck knew or should
have known of its claims against HCI by late 2001. Kuck’s claims were therefore barred
by the time Kuck filed its cross-complaint against HCI in November 2006.
4 ¶7 Second, the court concluded that Kuck’s claims were barred by collateral estoppel.
The court observed that identical issues were raised in the Weiss and Burbank lawsuits.
In particular, the statute of limitations arguments raised by Kuck were the same in both
cases. Next, it concluded that the Weiss Court reached a final judgment on the merits and
that the parties to both lawsuits were the same. Lastly, the court remarked that “[w]ith
extensive briefing and two hearings, Kuck has been heard.” Accordingly, the court
granted summary judgment in favor of HCI.
¶8 On June 6, 2008, the Burbank Court denied Kuck’s motion for reconsideration.
Less than a month later, the Weiss Court denied Kuck’s motion to clarify and motion for
leave to amend. Kuck now appeals from the September 11, 2007, April 7, 2008, June 6,
2008, and July 2, 2008 orders of the Weiss and Burbank Courts.
¶9 “The question of whether a district court properly granted a motion to dismiss is a
conclusion of law which we review to determine if the court’s interpretation and
application of the law is correct.” Fleenor v. Darby School Dist., 2006 MT 31, ¶ 6, 331
Mont. 124, 128 P.3d 1048. We review a district court’s decision to grant summary
judgment de novo. Libby Placer Min. Co. v. Noranda Min. Corp., 2008 MT 367, ¶ 25,
346 Mont. 436, 197 P.3d 924. The moving party must establish the absence of any
genuine issues of material fact and entitlement to judgment as a matter of law. Libby
Placer Min. Co., ¶ 25.
¶10 A motion for reconsideration is not authorized by the Montana Rules of Civil
Procedure. Horton v. Horton, 2007 MT 181, ¶ 7, 338 Mont. 236, 165 P.3d 1076. In fact,
“[t]his Court has handed down numerous decisions wherein we have explained that a
5 ‘motion for reconsideration’ does not exist under the Montana Rules of Civil Procedure.”
Horton, ¶ 14. Instead, a motion wrongly designated as one for reconsideration is equated
to a motion to alter or amend under M. R. Civ. P. 59(g). Horton, ¶ 14. We therefore
construe Kuck’s motion for reconsideration as a motion to amend. We review a district
court’s discretionary rulings, including denial of a motion to amend a complaint, for
abuse of discretion. Emanuel v. Great Falls School Dist., 2009 MT 185, ¶ 9, 351 Mont.
56, 209 P.3d 244.
¶11 Under § 27-1-704, MCA, “[a] release or covenant not to sue given to one of two or
more persons liable in tort for the same injury, death, damage, or loss” discharges “the
tortfeasor to whom it is given from all liability for contribution.” Kuck’s cross-claim
against HCI in the Weiss lawsuit for indemnification/contribution is clearly barred by
§ 27-1-704(3), MCA. Moreover, under M. R. Civ. P. 13(g), “[a] pleading may state as a
Free access — add to your briefcase to read the full text and ask questions with AI
October 13 2009
DA 08-0600
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 328N
KUCK TRUCKING, INC., a Montana corporation,
Cross-Claimant and Appellant,
v.
BRENNTAG WEST, INC., a successor in interest to DYCE CHEMICAL, INC., a Montana Corporation, et al.,
Cross-Defendants and Appellees.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 2007-0443 Honorable Gregory R. Todd, Presiding Judge Cause No. DV -2005-048 Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kenneth D. Tolliver, Matthew B. Gallinger, Tolliver Law Firm, P.C., Billings, Montana
Mark L. Carman, Carman Law Office, P.C., Billings, Montana
For Appellees:
Kyle A. Gray, Robert L. Sterup, Holland & Hart, LLP, Billings, Montana
Kim K. Burke, Daniel R. Warncke, Taft, Stettinius, Hollister, LLP, Cincinnati, Ohio
Submitted on Briefs: August 26, 2009
Decided: October 13, 2009 Filed:
__________________________________________ Clerk
2 Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number, and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Kuck Trucking, Inc. appeals from four orders of the Thirteenth Judicial District
Court, Yellowstone County, entered in two separate cases: Weiss v. Dyce Chemical and
Burbank v. Brenntag West, Inc. These cases were consolidated on appeal. We affirm.
¶3 In June 2000, the Weiss plaintiffs filed a class action complaint against Kuck and a
number of other defendants, including Brenntag West, Inc. (as successor in interest to
Dyce Chemical, Inc.), Brenntag, Inc. (as successor in interest to HCI USA Distribution
Companies), and Stinnes Corporation (as successor in interest to HCI Americas, Inc.)
(collectively HCI). The complaint alleged that the defendants had contaminated the soil,
water, and air in the town of Lockwood, Montana. In April 2004, HCI settled with the
Weiss plaintiffs and was dismissed from the suit. Kuck remained a party to the lawsuit,
as the plaintiffs alleged that Kuck was responsible in part for the contamination. In May
2007, Kuck filed a cross-complaint against HCI seeking damages for violation of the
Montana Constitution, strict liability, trespass, negligence, nuisance, wrongful occupation
of land, unjust enrichment, and indemnification/contribution. Kuck also sought punitive
damages.
3 ¶4 In January 2005, after HCI had been dismissed from the Weiss lawsuit, the
Burbank plaintiffs filed a similar class action complaint. Again, Kuck and HCI were
named as defendants. In November 2006, Kuck asserted the same cross-claims against
HCI in the Burbank lawsuit as it had asserted in the Weiss lawsuit. HCI settled with the
Burbank plaintiffs in April 2008.
¶5 On September 11, 2007, the Weiss Court granted HCI’s motion to dismiss Kuck’s
cross-complaint. The court observed that once parties settle, under § 27-1-704, MCA,
co-tortfeasors are barred from bringing contribution claims against the settling parties.
Moreover, the court noted that pursuant to M. R. Civ. P. 13(g), cross-claims may only be
asserted against co-parties. By the time Kuck filed its cross-complaint in 2007, HCI was
no longer a party to the Weiss lawsuit. Lastly, the court determined that the claims raised
by Kuck in its cross-complaint were barred by the statute of limitations.
¶6 On April 7, 2008, the Burbank Court granted summary judgment in favor of HCI
and dismissed Kuck’s cross-complaint. The court determined that Kuck’s claims were
barred for two reasons. First, the court concluded that Kuck’s claims were barred by the
statute of limitations. Under § 27-2-102(3)(a), MCA, the statute of limitations begins to
run when a party knew or should have known the facts constituting its claim. According
to the court, Kuck’s various tort claims were subject to two and three-year statutes of
limitations. Because Kuck filed a pleading in 2001 alleging that contaminated
groundwater flowed from Dyce Chemical onto Kuck’s property, Kuck knew or should
have known of its claims against HCI by late 2001. Kuck’s claims were therefore barred
by the time Kuck filed its cross-complaint against HCI in November 2006.
4 ¶7 Second, the court concluded that Kuck’s claims were barred by collateral estoppel.
The court observed that identical issues were raised in the Weiss and Burbank lawsuits.
In particular, the statute of limitations arguments raised by Kuck were the same in both
cases. Next, it concluded that the Weiss Court reached a final judgment on the merits and
that the parties to both lawsuits were the same. Lastly, the court remarked that “[w]ith
extensive briefing and two hearings, Kuck has been heard.” Accordingly, the court
granted summary judgment in favor of HCI.
¶8 On June 6, 2008, the Burbank Court denied Kuck’s motion for reconsideration.
Less than a month later, the Weiss Court denied Kuck’s motion to clarify and motion for
leave to amend. Kuck now appeals from the September 11, 2007, April 7, 2008, June 6,
2008, and July 2, 2008 orders of the Weiss and Burbank Courts.
¶9 “The question of whether a district court properly granted a motion to dismiss is a
conclusion of law which we review to determine if the court’s interpretation and
application of the law is correct.” Fleenor v. Darby School Dist., 2006 MT 31, ¶ 6, 331
Mont. 124, 128 P.3d 1048. We review a district court’s decision to grant summary
judgment de novo. Libby Placer Min. Co. v. Noranda Min. Corp., 2008 MT 367, ¶ 25,
346 Mont. 436, 197 P.3d 924. The moving party must establish the absence of any
genuine issues of material fact and entitlement to judgment as a matter of law. Libby
Placer Min. Co., ¶ 25.
¶10 A motion for reconsideration is not authorized by the Montana Rules of Civil
Procedure. Horton v. Horton, 2007 MT 181, ¶ 7, 338 Mont. 236, 165 P.3d 1076. In fact,
“[t]his Court has handed down numerous decisions wherein we have explained that a
5 ‘motion for reconsideration’ does not exist under the Montana Rules of Civil Procedure.”
Horton, ¶ 14. Instead, a motion wrongly designated as one for reconsideration is equated
to a motion to alter or amend under M. R. Civ. P. 59(g). Horton, ¶ 14. We therefore
construe Kuck’s motion for reconsideration as a motion to amend. We review a district
court’s discretionary rulings, including denial of a motion to amend a complaint, for
abuse of discretion. Emanuel v. Great Falls School Dist., 2009 MT 185, ¶ 9, 351 Mont.
56, 209 P.3d 244.
¶11 Under § 27-1-704, MCA, “[a] release or covenant not to sue given to one of two or
more persons liable in tort for the same injury, death, damage, or loss” discharges “the
tortfeasor to whom it is given from all liability for contribution.” Kuck’s cross-claim
against HCI in the Weiss lawsuit for indemnification/contribution is clearly barred by
§ 27-1-704(3), MCA. Moreover, under M. R. Civ. P. 13(g), “[a] pleading may state as a
cross-claim any claim by one party against a coparty arising out of the transaction or
occurrence that is the subject matter either of the original action or of a counterclaim
therein or relating to any property that is the subject matter of the original action.”
Ultimately, cross-claims may only be asserted against co-parties. By the time Kuck filed
its cross-complaint against HCI in May 2007, HCI had been dismissed from the case for
over three years. Kuck’s cross-claims against HCI were barred, and the Weiss Court did
not err in granting HCI’s motion to dismiss. We also conclude that the court did not
abuse its discretion in denying Kuck’s motion to clarify and motion for leave to amend.
¶12 “The doctrine of collateral estoppel, which embodies the concept of ‘issue
preclusion,’ is a form of res judicata which bars a party from re-litigating an issue, as
6 opposed to an entire claim, where that issue has been litigated and determined in a prior
suit.” Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 65, 345 Mont. 12, 192 P.3d 186.
Application of collateral estoppel in Montana has traditionally required that: 1) the
identical issue raised was previously decided in a prior adjudication; 2) a final judgment
on the merits was issued in the prior adjudication; 3) the party against whom collateral
estoppel is now asserted was a party or in privity with a party to the prior action; and 4)
the party against whom preclusion is asserted must have been afforded a full and fair
opportunity to litigate any issues which may be barred. Baltrusch v. Baltrusch, 2006 MT
51, ¶ 18, 331 Mont. 281, 130 P.3d 1267.
¶13 Here, the Weiss Court determined that the statute of limitations barred Kuck’s
claims. Kuck attempted to litigate the same issue again in the Burbank case. A final
judgment on the merits was issued in the prior adjudication. The Burbank Court noted
that “[c]learly, this matter was heard by Judge Todd, and he ruled Kuck missed the
statute of limitations.” Kuck was a party in both the Weiss and Burbank lawsuits. Lastly,
Kuck has been given two opportunities to litigate the statute of limitations issue. For
these reasons, Kuck is collaterally estopped from relitigating the statute of limitations
issue. Accordingly, the Burbank Court did not err in granting summary judgment in
favor of HCI. We also conclude that the court did not abuse its discretion in denying
Kuck’s motion to amend, wrongly designated as a motion for reconsideration.
¶14 We have determined to decide this case pursuant to Section 1, Paragraph 3(d)(v)
of our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record before us
7 that this appeal is without merit because the legal issues are clearly controlled by settled
Montana law. With respect to the issues invoking judicial discretion, there clearly was
not an abuse of discretion.
¶15 Affirmed.
/S/ PATRICIA O. COTTER
We concur:
/S/ JAMES C. NELSON /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART /S/ BRIAN MORRIS