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In re Distribution of Pine Creek Fire Settlement

Supreme Court of Montana

January 29, 2019

IN RE DISTRIBUTION OF THE PINE CREEK FIRE SETTLEMENT PROCEEDS: KEVIN FUNK, COURTNEY FUNK, AVIS FUNK, KF TRUCK SALES, SCOTT PITMAN, and SUSAN PITMAN, Appellants,
v.
ANN WILCOX, individually, and STEPHEN ANTHONY CHILDS and SUSAN H. CHILDS, as co-trustees for the STEPHEN ANTHONY CHILDS AND SUSAN H. CHILDS FAMILY TRUST, as co-trustees for the SAMANTHA ATHERTON CHILDS TRUST, and as co-trustees for the ASHLEY AGADEZ CHILDS TRUST, Appellees.

          Submitted on Briefs: September 26, 2018

          APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DV-14-36 Honorable Brenda Gilbert, Presiding Judge

          For Appellants: Jami Rebsom, Jami Rebsom Law Office, P.L.L.C., Livingston, Montana

          For Appellees: A. Clifford Edwards, A. Christopher Edwards, Edwards, Frickle & Culver, Billings, Montana

          LAURIE MCKINNON JUSTICE

         ¶1 This appeal concerns the distribution of settlement proceeds that arose out of litigation regarding the August 2012 Pine Creek Fire. Pursuant to M. R. App. P. 2(4), we have amended the caption to more accurately reflect the actual alignment and status of the parties.

         ¶2 Kevin and Courtney Funk, et al. (Funks), along with Scott and Susan Pitman (Pitmans), appeal an order from the Sixth Judicial District Court, Park County, approving the Special Master's recommendation for allocating the Pine Creek Fire settlement proceeds among the Funks; Pitmans; Ann Wilcox, et al. (Wilcoxes); and four other plaintiffs. We affirm.

         ¶3 We restate and address the following issue on appeal:

Did the District Court clearly err by adopting the Special Master's factual finding that the Wilcoxes lost 60 acres of forested land during the Pine Creek Fire?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶4 In August 2012, a forest fire (Pine Creek Fire) broke out near the small community of Pine Creek, ravaging thousands of acres of vegetation and decimating numerous residents' properties. Seeking to recover damages for injuries the Pine Creek Fire caused, the Funks, Pitmans, Wilcoxes, and four other property owners all brought claims against multiple defendants whose negligence, they alleged, ignited the fire.

         ¶5 The District Court appointed a settlement master and ordered all parties to attend a settlement conference, after which the parties agreed to a settlement. Because the settlement proceeds could not cover all the plaintiffs' damages, the District Court appointed a Special Master, and each of the property owners-including the Funks, Pitmans, and Wilcoxes-agreed to submit allocation of the settlement proceeds to him.

         ¶6 The Special Master received information and exhibits in support of each plaintiff's claims for damages. Certified arborist Tom Yelvington (Yelvington) assisted many of the plaintiffs by estimating the cost to restore the burned vegetation on their properties. Yelvington calculated these restoration costs by determining the costs to remove burned trees and vegetation, purchase replacement trees and vegetation, transport and plant the replacement trees and vegetation, and water and care for the trees and vegetation to ensure their survival. Because many plaintiffs lost hundreds-and sometimes thousands-of trees to the Pine Creek Fire, restoration damages often made up the majority of their total damages claims. The Special Master remarked that the sizable restoration damages claims substantially drove his apportionment of the limited settlement funds.

         ¶7 The Wilcoxes submitted information to the Special Master that the Pine Creek Fire burned 60 acres of forested land-over 18, 500 trees-on their 104 acres of property. Yelvington counted burned trees in two scorched acres representative of the average tree density throughout the Wilcoxes' property. Using the average count of burned trees between the two acres, Yelvington multiplied the average count with the Wilcoxes' estimate that they lost 60 acres of forested land. Thus, Yelvington calculated the Wilcoxes lost over 18, 500 trees. Yelvington then used this value to estimate the cost to restore the trees on the Wilcoxes' ...


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