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Ahern v. Eighth Judicial District Court, Cascade County

Supreme Court of Montana

February 20, 2018

NANCY AHERN, BNSF INSURANCE COMPANY, LTD., BNSF RAILWAY COMPANY, Petitioners,
v.
EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY, KATHERINE M. BIDEGARAY, Respondent.

          ORDER

         Petitioners BNSF Railway Company and Nancy Ahern (collectively "BNSF"), through counsel, filed a Petition for Writ of Supervisory Control with this Court on January 25, 2018, requesting this Court to review the Eighth Judicial District Court's Order Denying Defendant's Motion to Disqualify Plaintiffs Current Counsel in Cause No. BDV-14-001, Dannels v. BNSF Railway Company, et al BNSF also requested this Court stay the District Court's proceedings pending disposition of this Petition. After review of the Petition, this Court deemed it appropriate to order a response. The Honorable Katherine M. Bidegaray, and Robert Dannels, Plaintiff in the underlying proceeding, have both filed responses.

         After obtaining a judgment against BNSF in an FELA action, Dannels commenced a bad faith action against BNSF on January 2, 2014. Dannels' counsel in the FELA action-Erik Thueson, Dennis Conner, and Keith Marr-represent him in the bad faith action, and have done so since its inception. On June 30, 2017, approximately three-and-a-half years into the case, BNSF moved to disqualify all of Dannels' attorneys pursuant to Rule 3.7 of the Montana Rules of Professional Conduct. The District Court denied BNSF's motion. BNSF seeks a writ of supervisory control, contending that the District Court erred by holding that Plaintiffs counsel are not necessary witnesses, and that allowing them to act as advocates at trial forecloses BNSF's ability to present certain evidence in their defense, prejudices the entire trial, and violates Montana Rule of Professional Conduct 3.7. BNSF also argues that Dannels' bad faith claim is preempted by the FELA.

         Supervisory control is an extraordinary remedy that is sometimes justified when (1) urgency or emergency factors exist making the normal appeal process inadequate; (2) the case involves purely legal questions; and (3) in a civil case, either the other court is proceeding under a mistake of law causing a gross injustice, or constitutional issues of state-wide importance are involved. M. R. App. P. 14(3).

         The denial of a motion to disqualify counsel is within a district court's discretionary powers, which we review for an abuse of discretion. Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 26, 303 Mont. 274, 16 P.3d 1002. In its Order denying BNSF's motion to disqualify Dannels' counsel, the District Court first walked through the procedural history of the case, before analyzing BNSF's general allegations, and then analyzing BNSF's allegations as they pertained specifically to each of Dannels' individual counsel. The District Court ultimately concluded:

For approximately three years, this bad faith case was litigated-on both sides-by the same attorneys who litigated the underlying case. If [BNSF] truly believed any of Dannels' counsel to be "necessary witnesses" in this matter, it could, and should, have been raised years ago. [BNSF] effectively waived this issue by waiting to raise it until 2017. Regardless, even under a strictly fact-based analysis, [BNSF has] not met [its] burden to disqualify Dannels' attorneys under Rule 3.7 of Montana's Rules of Professional Conduct.

         We are not convinced that BNSF has satisfied the requirements for this Court to exercise the extraordinary remedy of supervisory control. First, relative to BNSF's motion to disqualify Dannels' counsel, as the District Court appropriately noted, this issue "could, and should, have been raised years ago." BNSF does not explain in its Petition why it did not move to disqualify Dannels' counsel earlier in the case. To the extent that there may be urgency or emergency factors making the normal appeal process inadequate, the urgency is of BNSF's own making.

         Second, this case does not involve a purely legal question. BNSF cites Judge Molloy's analysis of Rule 3.7 in Nelson v. Hartford Ins. Co. of the Midwest, 2012 U.S. Dist. LEXIS 30983 (D. Mont. Mar. 8, 2012), as being "directly on point and persuasive." As the District Court pointed out in its Order, however, Judge Molloy noted in Nelson that "a categorical exclusion from bad faith actions of the attorney who represented the plaintiff in the underlying action is too broad." Nelson, 2012 U.S. Dist. LEXIS 30983, at *11. While noting that "Judge Molloy found the attorney to constitute a necessary witness under Rule 3.7 based on the unique facts of that case, " and finding his analytical framework under Rule 3.7 relevant and applicable, the District Court nevertheless "reache[d] a different conclusion based on the distinct facts of this case." Ultimately, the District Court concluded "even under a strictly fact-based analysis, [BNSF has] not met [its] burden to disqualify Dannels' attorneys under Rule 3.7 of Montana's Rules of Professional Conduct." (Emphasis added.)

         BNSF also argues that we should exercise supervisory control because, it contends, Dannels' bad faith claim is preempted by the FELA. BNSF does not address or, for that matter, even cite this Court's opinion in Reidelbach v. Burlington N. & Santa Fe Ry. Co., 2002 MT 289, 312 Mont. 498, 60 P.3d 418, in which we rejected this very argument. As Dannels aptly notes in his response to BNSF's petition, "By definition, it is not a 'mistake of law' for a District Court to abide by binding precedence [sic]." More to the point, if BNSF wants this Court to revisit our opinion in Reidelbach, the normal appeal process is certainly adequate for that purpose.

         Therefore, IT IS ORDERED that the petition for a writ of supervisory control is DENIED and DISMISSED.

         The Clerk is directed to provide Copies of this Order to counsel for Petitioners BNSF and Nancy Ahern, counsel for Robert Dannels, and the Honorable ...


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