W D CONSTRUCTION INC v BD OF
Annotate this Case
Download PDF
No. 85-131 I N THE SUPREME COURT OF THE STATE OF MONTANA 1985 W. D. CONSTRUCTION, I N C . , ROYAL VILLAGE, I N C . , W. E . DITEMAN a n d LANORA DITEMAN, VALLEY RANK OF BELGRADE, a M o n t a n a b a n k i n g c o r p o r a t i o n , MIKE N. S T E I N E R , ELIZABETH M. S T E I N E R , P A T R I C I A M. S T E I N E R , MARK S T E I N E R a n d MONTANA WILLIAMS DOUBLE DIAMOND CORPORATION, a M o n t a n a c o r p o r a t i o n , L I L L I A N E . WILLIAMS, i t s president, Defendants, P l a i n t i f f s , Third Party Plaintiffs and Appellants, THE BOARD O F COUNTY COMMISSIONERS OF GALLATIN COUNTY, MONTANA, Defendant, Third P a r t y Defendant and R e s p o n d e n t . APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t , I n a n d f o r t h e C o u n t y of G a l l a t i n , T h e H o n o r a b l e B y r o n R o b b , Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellant: N a s h , W e l l c o m e , F r o s t , G u e n t h e r & Zimmer; P a g e Wellcome, Bozeman, Montana (W.D. C o n t r u c t i o n , R o y a l V i l l a g e , W.E. D i t e m a n , L a n o r a D i t e m a n , V a l l e y B a n k of Belgrade) M c K i n l e y A n d e r s o n argued f o r M i k e S t e i n e r , E l i z a b e t h S t e i n e r , P a t r i c i a S t e i n e r & Mark S t e i n e r , B o z e m a n , Montana G o e t z , Madden & Dunn; W i l l i a m L. Madden, Bozeman, Montana ( M o n t . P7il l i a m s D o u b l e D i a m o n d C o r p . , L i l l i a n E. W i l l i a m s , P r e s i d e n t ) F o r Respondent: A. M i c h a e l S a l v a g n i , C o u n t y A t t o r n e y , B o z e m a n , M o n t a n a I , a n d o e , B r o w n , P l a n a l p , Komrners & Johnstone; C a l v i n Braaksma a r g u e d , Bozeman, Montana Joseph S a b o l , B o z e m a n , M o n t a n a Submitted: Decided: Filed: oc I- 3 1 ./$I85 Clerk S e p t e m b e r 19, 1 9 8 5 O c t o b e r 31, 1 9 8 5 Mr. Justice Fred J. Weber delivered the Opinion of the Court. Plaintiff, Mark Steiner (Steiner), brought a negligence action against Gallatin County (County) and the Board of County Commissioners of Gallatin County (Commissioners) for damages a llegedly arising when the Commissioners granted final approval of the plat of Royal Village Subdivision without requiring subdivision improvements or a bond guaranteeing such improvements. The Gal-latinCounty District Court concluded that the County and Commissioners were immune from suit under S 2-9-111, MCA, and dismissed them from the case on the grounds Steiner had failed to state a cause of action upon which relief could be granted. suit appeal. All other parties to the We affirm. The issue on appeal is: Are Gallatin County and the Commissioners immune from suit for negligence in the administration of state statutes or subdivision regulations in connection with the approval of the plat of Royal Village Subdivision in Gallatin County? Steiner's complaint alleged the following facts: That on the 26th day of February, 1975 . Commissioners adopted the regulations known as the "Gallatin County Subdivision Regulation1' .. ... That said regulations were designed for the purpose of insuring that all improvements required by the Gallatin County Subdivision Regulation would be in place or necessary escrow deposits or bonds would be furnished before the developers of the subdivision would be able to file their subdivision plat and sell lots to the general pub1 ic; that said regulations were specifically intended for the protections of the buyers of the subdivision lots in order to insure that the utilities would be in place, and that said buyers could use said lots for building purposes; ... .. ... That . Cornmi.ssioners have regulation by violated the granting final approval of the plat of Royal Village Subdivision . without requiring the subdivider, Royal Village, Inc., Wallace E. Diteman and LaNora Diteman, to have first installed all of the required improvements, or, in the alternative, to have first entered ... ... .. ... into a writ.ten subdivision improvement agreement with Commissioners posting a bond guaranteeing the construction and installation of all required improvements ... ... ... That as a direct and proximate result of the carelessness, negligence, failure, omission or refusal of the Commisto, follow and abide by sioners Gallatin County Subdivision regulations pertaining to approval of the subdivision plat for Royal Village Subdivision, the Plaintiff has sustained damages in a sum that is at this time undetermined ... ... ... ... A Commissioner stated by deposition that at the time the plat was approved a good share of the utilities were already in place. The roads were partially complete and some of the water and sewer lines were in. The Commissioner further stated that the Board did not require Diteman to complete the improvements or post a bond because everything was in progress and looked like it was going to be finished. Steiner contends that the Commissioners' failure to comply with its own subdivision regulations is negligence governed by 5 2-9-102, MCA: Governmental entities liable for torts except as specifically provided & legis1ature. Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietary function except as specifically provided by the legislature under Article 11, section 18, of The Constitution of the State of Montana. Commissioners contend that a legislative body and its members are immune from suit for legislative acts or omissions under damages arising 2-9-111, MCA. section provides: Immunity - - from suit for legislative acts and omissions. (1) As used in this section: (a) the term "governmental entity" includes the state, counties, municipalities, and school districts; (b) the term "legislative body" includes the legislature vested with legislative from That power b y A r t i c l e V o f The C o n s t i t u t i o n of t h e S t a t e o f Montana and a n y l o c a l gove r n m e n t a l e n t i t y g i v e n l e g i s l a t i v e powers by statute, including school boards. ( 2 ) A g o v e r n m e n t a l e n t i t y i s immune from s u i t f o r an a c t o r omission o f i t s legisl a t i v e body o r a member, o f f i c e r , o r agent thereof. ( 3 ) A member, o f f i c e r , o r a g e n t o f a l e g i s l a t i v e body i s immune f r o m s u i t f o r damages a r i s i n g f r o m t h e l a w f u l d i s c h a r g e of an o f f i c i a l d u t y a s s o c i a t e d w i t h t h e introduction o r consideration of legislat i o n o r a c t i o n b y t h e l e g i s l a t i v e body. ( 4 ) The i m m u n i t y p r o v i d e d f o r i n t h i s s e c t i o n does n o t extend t o any t o r t c o m m i t t e d b y t h e u s e o f a motor v e h i c l e , or other means of aircraft, transportation. S t e i n e r argues t h a t under § 2-9-102, MCA, t h e C o u n t y a n d Commissioners a r e r e s p o n s i b l e i n t o r t f o r t h e f a i l u r e o f t h e Commissioners to regulations. In S t a t e o f Montana comply with particular, a claim authorities education MCA, Steiner I n B.M. against the own argues (Mont. 1 9 8 2 ) , 649 P.2d i s d i s p o s i t i v e of t h i s i s s u e . brought their subdivision that 4 2 5 , 39 S t . R e p . v. State v. B.M. 1285, S t a t e a minor c h i l d and other school f o r damages a r i s i n g f r o m p l a c e m e n t i n a s p e c i a l program. The was n e i t h e r r a i s e d issue of immunity u n d e r nor discussed i n B.M. therefore t h a t case is not dispositive of § v. 2-9-111, S t a t e and the issue before us. Section 2-9-111, was MCA, enacted in 1977. In determining t h e l e g i s l a t i v e i n t e n t , t h i s Court looks f i r s t t o Dorn v. t h e p l a i n meaning o f t h e words used i n t h e s t a t u t e . Bd. 426, of Trust. 430, 40 o f B i l l i n g s Sch. D i s t . St.Rep. 348, 352. (Mont. 1 9 8 3 ) , 6 6 1 P.2d By its terms, this code s e c t i o n answers t h e i s s u e presented. Subsection (2) of B 2-9-111, MCA, declares that a g o v e r n m e n t a l e n t i t y i s immune f r o m s u i t f o r a n o m i s s i o n o f its legislative body. In this instance, the claimed n e g l - i g e n t a c t was t h e f a i l u r e o f t h e C o m m i s s i o n e r s t o r e q u i r e compliance w i t h subdivision r e g u l a t i o n s p r i o r t o approval o f the plat. That comes expressly within the plain language of . subsection (2) In substance, that paragraph provides that Gallatin County is immune from suit for an act of its legislative body, the Board of County Commissioners. In a similar manner, subsection (3) of § 2-9-111 provides that a member of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty. Again, by the express terms of the statute, the members of the Board of County Commissioners are immune from suit for damages arising official duty, that being the from a discharge of their approval of a plat. We therefore hold that Gallatin County and the Board of County Commissioners of Gallatin County are immune from suit for negligence in the administration of state statutes and subdivision regulations in connection with the approval of the plat of Royal Village Subdivision. We affirm the judgment of the District Court. We concur:
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
