                              No.    91-234

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1992



TOM HYDE and CAROL HYDE,
            Plaintiffs and Appellants,
     -vs-
EVERGREEN VOLUNTEER RURAL FIRE DEPARTMENT,.GLEfiKk                  '%

            Defendant and Respondent.



APPEAL FROM:    District Court of the Eleventh Judicial District,
                In and for the County of Flathead,
                The Honorable Michael H. Keedy, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Thomas E. Boland argued; Regnier, Lewis      &   Boland,
                 Great Falls, Montana

            For Respondent:
                 L. D. Nybo; Allen P. Lanning argued; Conklin,
                 Nybo, LeVeque & Murphy, Great Falls, Montana


                                            Submitted: December 4, 1991
                                              Decided: March 31, 1992
Filed:



                                    Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
      Plaintiffs Tom and Carol Hyde brought this action to recover
damages incurred in a fire at their home.                 The District Court for
the Eleventh Judicial District, Flathead County, granted summary
judgment to defendant Evergreen Volunteer Rural Fire Department
(Evergreen).      The court ruled that Evergreen is immune from suit
under 5 7- 33- 2208, MCA ( 1 9 8 5 ) .   The Hydes appeal.              We affirm.
      The issues are:
      1.   Did the District Court err in determining that Evergreen
is immune from suit under        §   7- 33- 2208,   MCA ( 1 9 8 5 ) ?
      2.   Did Evergreen's purchase of liability insurance constitute
a waiver of its immunity from suit to the extent of the insurance
coverage?
      3.   Is there a genuine issue of material fact precluding
summary judgment?
      On January 26, 1 9 8 7 , Evergreen was called to a fire at the
Hyde residence.       The volunteer firefighters made several attempts
to suppress the fire on that day and in the early morning of
January 27,     1987,    but their efforts proved unsuccessful.                      The
Hydes' residence and personal belongings valued at over $247,000
were destroyed in the fire.
      The Hydes filed suit against Evergreen, Flathead County, and
Does A through      2,   seeking damages on a theory of negligence in
fighting the fire.          The court granted Flathead County summary

                                          2
judgment for failure to state a claim against it.      Evergreen then
filed its motion for summary judgment, which was granted in March
1991.
                                    T
                                    I


     Did the District Court err in determining that Evergreen is
immune from suit under 5 7-33-2208, MCA (1985)?
     Section 7-33-2208, MCA     (1985),   provided:
     Fire control powers   - liability. (1) Any county rural
     fire chief or district rural fire chief or his deputy may
     enter private property or direct the entry of fire
     control crews for the purpose of suppressing fires.
     (2) A chief or deputy and the countv or rural district
     are immune from suit for iniurv to persons or property
     resultina from actions taken to suppress fires under this
     section. [Emphasis added.]
The Hydes argue that this statute only applied to rural fire
districts organized under Title 7, Chapter 33, Part 22, MCA.     They
assert that it did not provide immunity for Evergreen because
Evergreen was organized under Title 7, Chapter 3 3 , Part 21, MCA.
     Title 7, Chapter 33, Part 21, MCA, is entitled "Rural Fire
Districts.   It provides for the establishment by county commis-
sioners of fire districts in unincorporated territories or towns
after petition by the owners of fifty percent of the privately
owned lands in the area.       Title 7, Chapter 3 3 , Part 22, MCA, is
entitled "Rural Fire Protection.I t        It grants county governing
bodies the authority to provide for the organization of volunteer
rural fire control crews and to provide for the formation of county

                                    3
volunteer fire companies.   There are differences in the organiza-
tional structures and financing of firefighting units established
under the two parts.
     Section 7-33-2208, MCA (1985), did not provide immunity for
actions taken to suppress fires "under this   e." be
                                                That would
the appropriate language if immunity were to apply only to Part 22.
The statute provided that immunity applied to actions taken to
suppress fires "under this section. 'I Nevertheless, we will examine
the legislative history of 5 7-33-2208, MCA (1985), to determine
whether it supports the Hydes' position.
     Section 7-33-2208, MCA (1985), was originally enacted as Ch.
173, Sec. 3(4), L. 1945:

     (4) Any county rural fire chief and/or district rural
     fire chief may enter private property either with or
     without fire control crews for the purpose of suppressing
     fires, and are exempt from any damage resulting from such
     activity[.]
This statute was originally codified at R.C.M.   §   28-603(4).

     Another part of the same legislation, Section 4 of Ch. 173, L.
1945, provided:

     Lands to Which Applicable. The provisions of this act are
     not applicable to any organized forest protection
     district or fire district defined in Chapter 128, Laws of
     1939, as amended by Chapter 141, Laws of 1941 or any
     organized fire protection district organized and operat-
     ing under other legal authority. This act shall apply to
     all lands not protected by federal, state, municipal or
     private protective agencies organized under the laws of
     the State of Montana.



                                 4
The statutes relating to "organized forest protection district or
fire district defined in Chapter 128, Laws of 1939, as amended by
Chapter 141, Laws of 1941" provide for protection of timber
resources and are now codified at Title 76, Chapter 13, Part 1,
MCA.   It is not clear whether fire districts such as Evergreen were
excluded from immunity under the language "any organized fire
protection district organized and operating under other legal
authority" or were given immunity under the language "[tlhis act
shall apply to all lands not protected by federal, state, municipal
or private protective agencies organized under the laws of the
State of Montana."      In any event, Section 4 of Chapter 173, L.
1945, was codified at R.C.M.    5 28-604 and was repealed in 1977.
Ch. 397, L. 1977.
       Also in 1977, the Montana Legislature amended the statute
which became 5 7-33-2208, MCA (1985), as follows:
       Any county rural fire chief or district rural fire chief
       or his deputy may enter private property or direct the
       entry of fire control crews for the purpose of suppress-
       ing fires. A chief or deputy and the county or rural
       district are immune from suit for injury to persons or
       property resulting from actions taken to suppress fires
       under this subsection.
Chapter 73, Sec. 1, L. 1977.    The amendment was approved by a two-
thirds majority of the Legislature as is required for laws which
provide governmental immunity.    Mont. Const. Art. 11, Sec. 18.
       This code section was not amended by the Legislature between
1977 and 1989.      During recodification from the Revised Codes of

                                  5
Montana into the Montana Code Annotated, the Montana Code Commis-
sioner redesignated it as a code section in itself, instead of
subsection (4) of a larger statute, and changed the word "subsec-
tionl'in the statute to llsection.ll
       We conclude that the use of the word "section" in 5 7-33-2208,
MCA    (1985),   does not resolve the question of whether the immunity
provided under the statute applies to fire districts established
under Title 7, Chapter 33, Part 21, MCA. Therefore we will examine
other language used in      §   7-33-2208, MCA (1985).
       The terms "county rural fire chief" and "district rural fire
chief" in 5 7-33-2208, MCA (1985), reflected terms used in Title 7,
Chapter 33, Part 22, MCA.          See   §§   7-33-2202 through -2204, MCA.

The term "rural district" as found in            §   7-33-2208, MCA ( 1 9 8 5 ) , is

not otherwise used in Part 22.                Part 22 addresses "rural fire
control crews" and llcounty
                          volunteer fire companies, not "county
or rural districts."       The term llruraldistrict" is, however, used
in Part 21.       See, e.g., 5 7-33-2101, MCA.
       We conclude that under the plain language of             §   7-33-2208, MCA

(1985),    immunity extended to Evergreen and other rural fire
districts established pursuant to Title 7, Chapter 33, Part 21,
MCA.    This interpretation promotes the important function of fire
districts in protecting public and private rural property from fire
in Montana. Under the interpretation urged by the Hydes, immunity
f o r rural firefighters and their chief would depend on how that

                                         6
firefighting unit originated.   If a county government established
a rural fire control crew or fire company on its own initiative,

then that entity would be immune, but if the county commissioners
established a rural fire district in response to a petition by
landowners who wished to protect their property, then that district
and its fire chief would not be immune.     There is no logic or
reason for granting or withholding immunity to a rural firefighting
unit based upon the method of its formation.
     We note that 5 7-33-2208, MCA, was amended in 1989 and now
applies to “[a] chief or deputy and the county, rural district,
fire company, or fire service area.“   This amendment passed by a
two-thirds majority of the Legislature.    The terms added in the
1989 amendment appear in Title 7, Chapter 33, Part 23, MCA (“fire

companies”), and Title 7, Chapter 33, Part 24, MCA (“fire service
areas!’).
                                I1

     Did Evergreen’s purchase of liability insurance constitute a
waiver of its immunity from suit to the extent of the insurance
coverage?
     The Hydes‘ argument under this issue is based on this Court’s
opinion in Crowell v. School Dist. No. 7 (1991), 247 Mont. 38, 805
P.2d 522.   In that opinion, this Court held that the immunity
provided to school districts under 5 2-9-111, MCA      (1989), was
waived to the extent of coverage of any liability insurance

                                 7
purchased by the school district.      Crowell, 805 P.2d at 534.   The
Montana Legislature promptly acted to negate the effect of Crowell
by enacting Chapter 821, L. 1991. That act amended 5 2-9-111, MCA,
to specifically provide that the acquisition of insurance does not
operate as a waiver of the immunity provided by the statute.
Section 2-9-111(~)(4), MCA.
      The reasoning in Crowell involved an established legislative
pattern of joint consideration of insurance and governmental
immunity in relation to 5 2-9-111, MCA.     Crowell, 805 P.2d at 528-
33.   No pattern of joint legislative consideration of insurance and
immunity is present in the legislative history of 5 7-33-2208, MCA
(1985). In fact, no joint consideration of these issues appears in
the legislative history at all. We therefore hold that Crowell has
no application to this case and that Evergreen did not waive its
immunity from suit by purchasing liability insurance.
                                 I11

      Is there a genuine issue of material fact precluding summary
judgment?
      The Hydes assert that their complaint contains allegations
which are outside the bounds of the immunity provided under 5 7-33-
2208, MCA (1985).    Specifically, they cite the claim in Paragraph
XI of their complaint that Evergreen was negligent in failing or
refusing to have a properly equipped fire truck and a properly
trained fire crew.   The Hydes argue that these acts and omissions

                                  8
of Evergreen were not protected under the immunity statute because
they took place before fire suppression activity commenced.
     But even when viewed in the light most favorable to them, the
Hydes' claim is based upon Evergxeen's alleged failure to have a
properly equipped fire truck and a properly trained fire crew &
the fire at their home.       Any damages suffered by the Hydes and
caused by Evergreen were a result of the fire suppression activity
by Evergreen at the fire at the Hydes' home.     Under 5   7- 33- 2208,

MCA (1985), Evergreen is exempt from any damage resulting from its

fire suppression activity.     We therefore hold no genuine issue of
material fact precludes summary judgment.
     Affirmed.



We concur:




                          /
          Justices

                                   9
Justice Karla M. Gray, concurring in part and dissenting in part.


     I concur in the opinion of the majority as to issues 1 and 2.
I must respectfully dissent from that opinion on issue 3 , relating
to whether there is a genuine issue of material fact.        I do so
because the result of that holding is to broaden the applicability
of the immunity I agree is extended to Evergreen under 5 7-33-2208,
MCA, past the point included within that statute.
     Furthermore, in order to reach its conclusion, the majority
has reached beyond the District Court's order granting summary
judgment.     That order, while couched in part in summary judgment
terms, was in effect an order granting a motion to dismiss for
failure to state a claim premised entirely on the availability of
the statutory immunity, rather than an order determining that no
genuine issues of material fact existed.       To that extent, this
Court has engaged in unstated fact-finding of its own that the
damages suffered by the Hydes were caused by Evergreen's activities
at the Hydes' residence during the fire, as opposed to being caused
by negligent acts or omissions by Evergreen in advance of that
fire.
        I would remand for such further motions or proceedings as may
be appropriate.




                                10
Justice Terry N. Trieweiler dissenting.
        I dissent from every part of the majority opinion.
        If the plaintiffs' allegations are true, and for purposes of
reviewing the District Court's order dismissing their claim by
summary judgment, we must presume they are, then their home and the
property that it contained were totally destroyed due to repeated
acts of negligence on the part of the Evergreen Volunteer Rural
Fire Department.
        Plaintiffs allege that at 2 p.m.     on January 26, 1987, the
defendant fire department was called to suppress a fire at their
home.     It arrived and attempted to do so until about 4 p.m., when
it left the premises over the plaintiffs' protestations while fire
and smoke were still present at the residence.
        At 6:16 p.m. the same day, defendant was called back to the
residence to again suppress the fire. It attempted to do so until
11:15 p.m., at which time it once again left the premises, in spite

of the fact that fire and smoke were still present.
        At   12:15   a.m.,   the   defendant was   called   back   to   the
plaintiffs' residence for a third time and remained until 2 a.m. on
January 27, at which time they again left the scene.          Plaintiffs
allege that fire and smoke were still present when defendant left
this third time.
        Finally, at 6:45 a.m., the defendant was called back to the
plaintiffs' residence for a fourth time and remained at the


                                      11
residence until 9 a.m., by which time plaintiffs' entire residence
and all of its contents and furnishings were destroyed.
         Plaintiffs allege damage to their property in the amount of
$247,000.       At the time of the fire, the defendant had in effect
fire liability insurance coverage in the amount of $1 million.
         Immunity protects someone who has committed a wrongful or
illegal act at the expense of the victim of that wrongful act.
Immunity       should     never   be    found     unless    established    in   a
constitutional manner and made perfectly clear.                    Why any court
would want to strain as hard as this Court has to find immunity
where it has not been clearly provided is beyond my comprehension.
         The   majority    opinion     violates    all     rules   of   statutory
construction and common sense.
         In his concurring opinion in Crowell v School District No. 7 of Gallatin
                                              .

COIL?@    (1991), 247 Mont.       38, 805 P.2d     522, Chief Justice J. A.

Turnage correctly points out that:
         "In the construction of a statute, the office of the
         judge is simply to ascertain and declare what is in terms
         or in substance contained therein, not to insert what has
         been omitted or to omit what has been inserted." Section
         1-2-101, MCA.     This is the rule of law governing
         statutory construction, and it is an appropriate and
         proper rule. There is no place for individual preference
         or desire to become the rule of law when the Court
         interprets statutory language.
Crowell, 805 ~ . 2 d 535.
                   at

         This prior observation by the author of the majority opinion
sets forth the proper role of this Court.             However, the majority's

                                         12
strained interpretation of 5 7- 33- 2208, MCA ( 1 9 8 7 ) , in this case is
the antithesis of Chief Justice Turnage's prior admonition.
     Title 7, Chapter 33, Part 2 1 authorizes the board of county
commissioners to establish rural fire districts pursuant to a
petition of property owners within the district.                        There is no
purpose ascribed to Part 2 1 other than to allow rural residents to
join together to protect themselves against fire.                       There is no
immunity provided in Part 2 1 for the fire districts that are
formed.
     Title 7 ,      Chapter 3 3 , Part 22 has a different purpose.                It
allows county commissioners to, on their own initiative, organize
a volunteer rural fire control crew or county volunteer fire
companies for the specified purpose of protecting undeveloped
areas, such as range land, farm land, and forest resources which
might not normally be included in rural fire districts.
     Section 7- 33- 2208, MCA, allows the various fire departments
and their heads to enter private property for the purpose of
suppressing fires.            Since that section is found in Part 22 and
makes no reference to Part 21, the power authorized is presumably
for the purpose of fighting fires in those areas that Part 22 was
established to protect.                  Those would be range fires, farm fires,
and fires involving forest resources where entry on private land
might be necessary to protect other land.
     Section 7 - 2 2 - 2 2 0 8 ( 2 ) ,     MCA    (1987),   is very   specific.   It
provides for immunity only for actions taken under that section.
                                                 13
That section is found only in Part 22 and presumably pertains only
to the fire fighting activities for which Part 22 was enacted.          In
order to expand 5 7-22-2208(2), MCA (1987), to apply to rural fire
districts which are established under Part 21, the majority had to
apply     imaginative,   convoluted     reasoning    and     insert   into
5 7-22-2208(2), MCA (1987), that which had not been inserted by the
legislature.
      The majority's strained interpretation of 5 7-22-2208(2), MCA
(1987), violates even more       fundamental rules of construction.
Article 11, Section 18, of the 1972 Montana Constitution, provides:
           The state, counties, cities, towns, and all other
      local governmental entities shall have no immunity from
      suit for injury to a person or property, except as may be
      specifically provided by law by a 2/3 vote of each house
      of the legislature.
      People in Montana who have been injured by the wrongful acts
of   their   government or the     agencies   that   it    forms have   a
constitutional right      to   seek compensation.      Any    statute   in
derogation of a constitutional right should be strictly construed.
73 Am.                              -
          Jur. 2d SlatUtes 5 283 (19 ) .   If the legislature has not

clearly provided for immunity, this Court has no business creating
immunity. B.M. v Stale (1982), 200 Mont. 58, 649 P.2d 425.
               .
        If anything can possibly be clear from the line of reasoning
pursued    by   the majority   in their opinion, it is that the
legislature has not       "clearly provided   for immunity" for the
Evergreen Volunteer Rural Fire Department. Instead, this Court has


                                   14
once again shown its preference for protecting the interests of
government, rather than people, by creating that immunity.
     Nor do I understand the majority's attempt to distinguish the
waiver of immunity that they found existed in Crowell from the

situation in this case.       If immunity exists, the rationale for
finding a waiver of immunity by purchase of liability insurance is
exactly the same. In arriving at its decision in Crowell, this Court

quoted with approval from the following language of the Arizona
Supreme Court in Smith Plumbing Company v. Aetna Casualty and Surety Company

(1986), 149 Ariz. 524, 720 P.2d 499, 502:

           The sovereign immunity doctrine originates in
           social policy designed to protect the State
           "from burdensome     interference with     the
           performance of its governmental functions.
            ... "   [Citation omitted. ] The compensated
           surety of a sovereign does not perform the
           governmental     functions    that     require
           protection; therefore, the protections a
           government needs to conduct its functions do
           not extend to the surety.     Furthermore, to
           allow a compensated surety such as Aetna to
           assert its principal's sovereign immunity and
           so avoid payment on a bond would be to provide
           a windfall to the surety. [Citations omitted.]
           If Aetna were allowed this defense, it would
           receive valuable consideration in the form of
           compensation  ...   without assuming the risk
           of payment   ....
Crowell, 805 ~ . 2 d 527.
                   at

     After reviewing the statutes authorizing the purchase of
insurance by governmental entities, this Court did not find any




                                    15
express waiver of immunity. On the contrary, it found a waiver on
reasoning similar to that of the Arizona Supreme Court.
          We come now to a critical part of the analysis. Is
      it improper to refuse to pay insurance proceeds to a
      party injured by the negligence of the school district,
      where insurance proceeds are available under a previously
      purchased insurance policy? If such a denial is made,
      then the party injured by the negligence of the school
      district has been denied compensation for injury and has
      been required to absorb all of the costs of such injury.
      If the school district is able to deny payment, then it
      has abdicated any responsibility for its own negligence.
      In addition, such a refusal to use insurance proceeds
      allows an insurance carrier to refuse to pay insurance
      benefits for which it has already received premium
      payment.
           As we carefully weigh the various factors, we
      conclude that the purchase of liability insurance by the
      School District in the present case should waive its
      immunity to the extent of the insurance coverage.
crowell, 8 0 5 P.2d at 5 3 3 .

      The exact same circumstances this Court relied on in arriving
at its decision in Crowell exist in this case.       The exact same

rationale should, therefore, also be applied.      The defendant in
this case purchased liability insurance and paid premiums for
coverage.     To deny a claim by the plaintiffs based upon the fire
district's immunity allows the insurance carrier to refuse to pay
insurance benefits for which it has already received premium
payment. Therefore, purchase of the insurance coverage by the fire
district should imply the same intention to waive immunity that was
attributed to the school district in Crowell.   There is no rational

basis for distinguishing between the two entities.

                                 16
       The majority notes that the Montana Legislature negated the
effect of Crowell when it amended 5 2-9-111, MCA, in 1991.           However,

the only effect of that amendment is to provide that purchase o f
liability insurance does not waive the immunity provided for by
that statute.         That amendment had no effect on waiver of the
immunity provided       for in any other statute.          Therefore, the
amendment does not preclude the application of the Crowell rationale

in this case.
       Finally,   I    concur   with   Justice   Gray's   dissent     to   the
majority's conclusion on Issue 3 .          The plaintiffs' complaint that
the defendant failed to properly equip its trucks and maintain its
equipment, and failed to properly train its crew, alleged separate
acts    of   negligence which     occurred     long   before   the   fire on
plaintiffs' property and had nothing to do with the negligent
manner in which the defendant failed to suppress that fire.
       This case is another example of this Court's propensity to
defer to the interests of government when it comes into conflict
with the interests of private citizens.
       Our responsibility is not to protect the government or its
agencies from its citizens. It is to protect private citizens from
their government.
       For these reasons, I dissent from the opinion of the majority.




                                       17
Justice William E. Hunt, Sr., dissenting.

     I concur in the dissent of Justice Trieweiler, and in Justice
Gray's dissent to the majority's conclusion on Issue 3.
                                ,




                                18
                                         March 31, 1992

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Thomas E. Boland
Regnier, Lewis & Boland
P.O. Box 2325
Great Falls, MT 59403

L. D. Nybo and Allen P. Laming
Conklin, Nybo, LeVeque & Murphy
P.O. Box 2049
Great Falls, MT 59403

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA   ,j
