The Doctors Company v. Finney

2006 MT 44N

• Court: Montana Supreme Court
• Decided: March 1, 2006
• Docket: 05-417
• Status: Published

Opinion

No. 05-417

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 44N

THE DOCTORS’ COMPANY,

Petitioner and Respondent,

v.

HOWARD LEE FINNEY, M.D.,

Respondent and Appellant.

APPEAL FROM: The District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 2005-301, Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Curtis G. Thompson, Thompson, Potts & Donovan, P.C., Great Falls, Montana

For Respondent:

Shelton C. Williams and Mark S. Williams, Williams Law Firm, Missoula, Montana

Submitted on Briefs: February 14, 2006

Decided: March 1, 2006

Filed:

__________________________________________ Clerk Justice Jim Rice 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 shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of nonciteable

cases issued by this Court.

¶2 Appellant Howard Lee Finney appeals from the order of the Fourth Judicial

District Court denying his motion for change of venue. We affirm.

¶3 This action arises out of a medical liability insurance policy purchased by Dr.

Howard Lee Finney (Finney) from Respondent The Doctors’ Company (TDC) in

November of 2003. The policy, among other things, included an arbitration provision

which stated:

Unless otherwise agreed, the arbitration will take place in the county where the Named Insured’s primary practice was located as of the Effective Date of this Policy.

(Emphasis in original.) At the time of the policy’s purchase, Finney practiced medicine

primarily in Cascade County.

¶4 On March 23, 2005, TDC filed a declaratory action in the Fourth Judicial District

Court, Missoula County, seeking a declaration of its rights and liabilities under the

insurance policy. Because Finney was then retired and residing in Missoula County, the

complaint asserted venue was proper there pursuant to § 25-2-121(1)(a), MCA (2003),

2 which provides that the county in which a defendant resides is a proper place for trial in

actions upon contracts. Finney filed a motion for change of venue. The District Court

denied that motion, and Finney appeals.

¶5 Finney argues that the insurance policy’s arbitration provision was in fact a

contractual stipulation to venue, and therefore, asserts that venue is only proper in

Cascade County, the county where Finney practiced medicine under the policy.

¶6 It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit the legal issues are clearly controlled by settled Montana

law which the District Court correctly interpreted, and there was clearly no abuse of

discretion by the District Court.

¶7 The arbitration provision at issue here specifically addresses arbitration and says

nothing of venue for civil suits generally. The parties are not engaged in arbitration here,

and, in fact, Finney has rejected arbitration. When a plaintiff files suit in a proper venue,

a court may not grant a defendant’s motion to change venue. Section 25-2-115, MCA

(2003); see also Spoonheim v. Norwest Bank (1996), 277 Mont. 417, 421, 922 P.2d 528,

530.

¶8 We affirm.

/S/ JIM RICE

3 We concur:

/S/ KARLA M. GRAY /S/ PATRICIA COTTER /S/ JOHN WARNER /S/ BRIAN MORRIS