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Marten v. Justad

United States District Court, D. Montana, Helena Division

March 28, 2018

ELLEN MARTEN, as Guardian and Conservator of Glen Marten, et al., Plaintiff,
v.
JEAN JUSTAD, M.D., SOUTH HILLS INTERNAL MEDICINE ASSOCIATES, PLLP, GENE HAIRE, MONTANA DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES, STATE OF MONTANA, DOES 1-10, Defendants.

          ORDER

          CHARLES C. LOVELL, SENIOR UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Gene Haire's motion to dismiss. The motion is opposed by Plaintiff Marten.

         In the fall of 2014, Defendant Haire was the Superintendent of the Montana Developmental Center (“MDC”). Plaintiff Glen Marten was a resident of MDC. Plaintiff asserts a claim of negligence (Count VI) against Defendant Haire arising from an alleged failure to provide appropriate medical care to Marten. In the Complaint, Plaintiff alleges that Haire's acts were done in the course and scope of his employment. (ECF No. 4, Complaint, ¶ 219.)

         Likewise, Defendant Haire asserts that any and all acts performed by him were done in the course and scope of his employment. Based on this agreement by the parties, Defendant Haire files a motion to dismiss himself from the suit, citing the operation of Montana Code Annotated § 2-9-305. Focusing on the second sentence of § 2-9-305(5), Defendant Haire argues that he is immune from suit and should be dismissed.

         The Montana statute provides as follows:

(1) It is the purpose of this section to provide for the immunization, defense, and indemnification of public officers and employees civilly sued for their actions taken within the course and scope of their employment.
(2) In any noncriminal action brought against any employee of a state, county, city, town, or other governmental entity for a negligent act, error, or omission, including alleged violations of civil rights pursuant to 42 U.S.C. 1983, or other actionable conduct of the employee committed while acting within the course and scope of the employee's office or employment, the governmental entity employer, except as provided in subsection (6), shall defend the action on behalf of the employee and indemnify the employee.
(3) Upon receiving service of a summons and complaint in a noncriminal action against an employee, the employee shall give written notice to the employee's supervisor requesting that a defense to the action be provided by the governmental entity employer. If the employee is an elected state official or other employee who does not have a supervisor, the employee shall give notice of the action to the legal officer or agency of the governmental entity defending the entity in legal actions of that type. Except as provided in subsection (6), the employer shall offer a defense to the action on behalf of the employee. The defense may consist of a defense provided directly by the employer. The employer shall notify the employee, within 15 days after receipt of notice, whether a direct defense will be provided. If the employer refuses or is unable to provide a direct defense, the defendant employee may retain other counsel. Except as provided in subsection (6), the employer shall pay all expenses relating to the retained defense and pay any judgment for damages entered in the action that may be otherwise payable under this section.
(4) In any noncriminal action in which a governmental entity employee is a party defendant, the employee must be indemnified by the employer for any money judgments or legal expenses, including attorney fees either incurred by the employee or awarded to the claimant, or both, to which the employee may be subject as a result of the suit unless the employee's conduct falls within the exclusions provided in subsection (6).
(5) Recovery against a government entity under the provisions of parts 1 through 3 of this chapter constitutes a complete bar to any action or recovery of damages by the claimant, by reason of the same subject matter, against the employee whose negligence or wrongful act, error, omission, or other actionable conduct gave rise to the claim. In an action against a governmental entity, the employee whose conduct gave rise to the suit is immune from liability by reasons of the same subject matter if the governmental entity acknowledges or is bound by a judicial determination that the conduct upon which the claim is brought arises out of the course and scope of the employee's employment, unless the claim constitutes an exclusion provided in subsections (6)(b) through (6)(d).
(6) In a noncriminal action in which a governmental entity employee is a party defendant, the employee may not be defended or indemnified by the employer for any money judgments or legal expenses, including attorney fees, to which the employee may be subject as a result of the suit if a judicial determination is made that:
(a) the conduct upon which the claim is based constitutes oppression, fraud, or malice or for any other reason does not arise out of the course and scope of the employee's employment;
(b) the conduct of the employee constitutes a criminal offense as defined in Title 45, ...

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