Trial Magazine

The Montana Supreme Court held that under Mont. Code Ann. §25-2-122, a survival and wrongful death action was properly filed in the county in which the decedent’s personal representative resided.

Here, Markkaya Gullett, who resided in Mineral County, Montana, died when her 1996 Ford Explorer became unstable and rolled into a ditch in that county. Charles Lucero, Gullett’s personal representative, who lived in Cascade County, Montana, sued Ford Motor Co. and others, alleging negligence and strict liability design defect and failure to warn. Ford moved unsuccessfully for a change of venue.

Affirming, the state high court noted that under §25-2-122, where a defendant is a corporation that is incorporated in a state other than Montana, the proper place to try a tort action is the county in which the alleged tort was committed, the county in which the plaintiff resides, or the county in which the corporation’s registered agent is located. Further, the court said, under state civil procedure rules, the personal representative is the proper party to maintain a wrongful death action and an executor may sue in his or her own name without joining a decedent.

Applying these principles to the case at bar, the court held that the legislature’s use of the word “plaintiff” in §25-2-122 implies that it did not intend to relate venue to the county in which the decedent lived before his or her death. Had the legislature intended for this result, the court said, it would have used the term “decedent,” not “plaintiff,” in §25-2-122’s statutory language. Citing case law, the court added that it will not insert omitted terms into a statute.

Thus, the court held, Lucero, as the plaintiff here, could have properly brought suit against Ford in Mineral County, where the rollover occurred; in Cascade County, where he resides; or in Missoula County, the location of Ford’s agent. Because the Cascade County venue was therefore proper, the court said, the trial court had properly denied Ford’s change of venue motion.

Citation: Lucero v. Ford Motor Co., 2019 WL 2754580 (Mont. July 2, 2019).

Plaintiff counsel: AAJ members Daniel P. Buckley, Bozeman, Mont.; and AAJ members Dennis P. Conner, Keith D. Marr, and James R. Conner, all of Great Falls, Mont.