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Nicole Alexander, As Personal Representative of the v. Bozeman Motors

December 20, 2012


APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV-05-699 Honorable John C. Brown, Presiding Judge

The opinion of the court was delivered by: Justice Patricia O. Cotter

Submitted on Briefs: September 26, 2012

Decided: December 20, 2012



Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Nicole and Helen Alexander appeal several rulings of the Eighteenth Judicial District Court, Gallatin County, regarding jury instructions, a motion in limine, and a subsequent jury verdict finding that Bozeman Motors, Inc. and its employees were not liable to Michael Alexander. We affirm.


¶2 Appellants Nicole and Helen Alexander raise the following four issues on appeal:

¶3 1. Does § 39-71-413(2), MCA, create an impermissible class of employees in violation of equal protection rights set forth in Article II, Section 4 of the Montana Constitution?

¶4 2. Did the District Court abuse its discretion when it excluded the term "employee" from Jury Instruction No. 34?

¶5 3. Did the District Court abuse its discretion in rejecting the Plaintiff's Proposed Jury Instruction Nos. 25, 26, 28 and 29?

¶6 4. Did the District Court abuse its discretion when it denied Plaintiffs' motion in limine to exclude Michael Alexander's cause of death?


¶7 In 2003, Bozeman Motors opened a recreational vehicle dealership near the Four Corners area west of Bozeman. Bozeman Motors purchased a 12 foot by 24 foot prefabricated log building to serve as the office. The building was delivered to the lot on August 28, 2003. Bozeman Motors hired a contractor to sheetrock and finish the building so that it would be suitable as a sales office. The building contained no heat source when it was purchased. As the weather began to turn colder, Bozeman Motors bought a propane stove to serve as the building's heat source. The propane stove was installed in late September 2003.

¶8 Burt Ostermiller started working out of the Four Corners office on September 1, 2003. Ostermiller claimed that the propane stove leaked propane and caused an unhealthy buildup of carbon monoxide. Ostermiller claimed that exposure to carbon monoxide in his work environment caused him to become sick. He experienced symptoms of dizziness and vomiting. Ostermiller noticed a strong chemical odor in the office, and members of his family noticed a chemical smell on his clothing. Ostermiller claimed that he reported the odor and his symptoms to his supervisors, but Bozeman Motors took no action to remedy the situation. Ostermiller alleged that on November 1, 2003, his girlfriend discovered him unconscious in the office. Following this incident, Ostermiller never returned to work at Bozeman Motors.

¶9 Michael Alexander (Alexander) replaced Ostermiller in the Four Corners office in November 2003. Bozeman Motors hired Alexander in February 2003. Alexander worked at Bozeman Motors' 19th Avenue location until being transferred to Four Corners. Alexander claimed that Bozeman Motors did not warn him of any problems with the propane stove or inform him of Ostermiller's complaints. Soon after beginning work at the Four Corners office, Alexander began to experience headaches, nausea, fatigue and other health problems. Alexander expressed his concerns to Bozeman Motors regarding his symptoms and the lack of ventilation in the office. Alexander's family and friends noticed a chemical odor on his clothing when he would come home after work. Alexander also claimed that the fumes in the office affected his dog to the point that his dog refused to enter the building. In April 2004, Alexander quit his job with Bozeman Motors alleging that he was too sick to continue working in the Four Corners building.

¶10 Shortly after he quit, Alexander's brother, Ted Alexander, arranged to have Greg Brainerd inspect the Four Corners office. Brainerd is a home inspector and the owner of Brainerd Home Inspection. During his inspection of the building, Brainerd smelled propane and noticed that the stove was short cycling, causing it to turn off and on. Brainerd did not believe the stove was functioning properly. Brainerd reported the results of his inspection to Bozeman Motors. Bozeman Motors subsequently conducted its own investigation of the propane stove, enlisting the assistance of MAC Propane. MAC Propane did not uncover any problems with the propane stove, but at the time of its inspection the stove had been turned off for several days. Bozeman Motors removed the propane stove from the office.

¶11 On November 8, 2005, Alexander and Ostermiller filed suit against Bozeman Motors, David Wallin, Bob Snedeker and Roger Beverage alleging negligence, battery, and negligent or intentional infliction of emotional distress. Defendant David Wallin was the president, vice president, chairman of the board of directors, sole shareholder, and general manager of Bozeman Motors. Defendant Bob Snedeker served as the general sales manager, and Defendant Roger Beverage worked as the recreational vehicle manager. Plaintiffs claimed long-term physical and emotional injuries resulting from exposure to carbon monoxide and propane. Plaintiffs also requested punitive damages.

¶12 Alexander died on February 20, 2006. Alexander's daughter, Nicole Alexander, joined the lawsuit as the personal representative of Alexander's estate. Alexander's mother, Helen Alexander, also became a party to the lawsuit following her son's death.

¶13 On March 1, 2007, Bozeman Motors moved for summary judgment on the basis that the claims against it were barred by the exclusive remedy provision*fn1 of Montana's Workers' Compensation Act*fn2 (WCA). In response, Ostermiller and Alexander argued that they had been intentionally injured by the intentional acts of Bozeman Motors and its employees, so their cause of action fell outside the exclusivity provision of the WCA, pursuant to § 39-71-413, MCA.*fn3 Ostermiller and Alexander also contended that § 39-71-413, MCA, which was amended in 2001 to exclude vicarious liability for the intentional and deliberate acts of an employee, impermissibly creates two classes of employees in violation of equal protection rights set forth in Article II, Section 4 of the Montana Constitution. Plaintiffs further argued that § 39-71-413, MCA, is an ...

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