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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,
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.
CHARLES C. LOVELL, SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Defendant Gene Haire's motion to dismiss.
The motion is opposed by Plaintiff Marten.
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.)
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.
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
(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
(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)
(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
(b) the conduct of the employee constitutes a criminal
offense as defined in Title 45, ...