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,
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
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
Appellants: Jami Rebsom, Jami Rebsom Law Office, P.L.L.C.,
Appellees: A. Clifford Edwards, A. Christopher Edwards,
Edwards, Frickle & Culver, Billings, Montana
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.
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
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?
AND PROCEDURAL BACKGROUND
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.
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.
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.
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' ...