                                  No. 96-095
                IN THE SUPREME COURT OF THE STATE OF MONTANA



DOROTHY J. LAKE, on her own behalf, and as the personal representative
of the estate of CHARLES EDWARD LAKE, deceased,on behalf of his heirs,

              Plaintiff and Appellant,

         v.

STATE OF MONTANA,

              Defendant and Respondent.


                                                                    ~~,i,\~ ;'I / I#
MARK JEFFREY HODIK, a minor, in his own behalf, and by                :,,
MARY JO HODIK, his next friend and the personal representative
of the estate of JAMES D. HODIK, deceased,                                             I,>
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                Plaintiff and Appellant,

         V.


STATE OF MONTANA,

              Defendant and Respondent


APPEAL FROM:          District Court of the First Judicial District, In and for the County of
                      Lewis and Clark, The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD

               For Appellants:

                      Ira D. Eakin (argued) and Michael G. Eiselein; Lynaugh,
                      Fitzgerald, Eiselein & Eakin; Billings, Montana

               For Respondent:

                      Anita Harper Poe (argued), Sherman V. Lohn, and William Evan Jones;
                      Garlington, Lohn & Robinson; Missoula, Montana

                                                                      Submitted: October 22, 1996
                                         A        n                       Decided: May 27, 1997
Filed:                                                       A
                                                             +
Justice Terry N. Trieweiler delivered the opinion of the Court.

       The plaintiffs, Dorothy J. Lake and Mary Jo Hodik, individually and as personal

representatives of the estates of Charles Edward Lake and James D. Hodik, commenced

separateactions in the District Court for the First Judicial District in Lewis and Clark County

to recover damages for personal injuries to and the wrongful deaths of their deceased

husbands,whom they claim were injured while working on property owned and controlled

by the defendant, State of Montana, through its Department of Military Affairs. After the

caseswere consolidatedby the District Court, the Statemoved the court to dismiss plaintiffs’

complaints by summary judgment pursuant to Rule 56, M.R.Civ.P. After considering the

arguments of the parties, the District Court concluded that both claims were barred by the

U.S. SupremeCourt’s decisionin Feres IL UnitedStates (1950), 340 U.S. 135,71 S. Ct. 153,

95 L. Ed. 2d 152, and the Ninth Circuit Court of Appeals’ decision in Stuuber v. Cline

(9th Cir. 1988), 837 F.2d 395, cert. denied(1988), 488 U.S. 817. The District Court granted

the State’smotion to dismissboth complaints with prejudice. Both plaintiffs appealfrom the

District Court’s order. We reverse the judgment of the District Court.

       We consider the following issue dispositive:

       Can a person who is allegedly injured by the negligence of the State of Montana,

acting through its Department of Military Affairs, while in the course of his employment as

a civil service technician employedby the United StatesArmy, sue the State of Montana to

recover damagesfor those injuries?

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                                STANDARD OF REVIEW

       Summary judgment is governed by Rule 56(c), M.R.Civ.P., which provides, in

relevant part, as follows:

       The judgment sought shall be renderedforthwith if the pleadings,depositions,
       answersto interrogatories, and admissionson file, together with the affidavits,
       if any, show that there is no genuine issue as to any material fact and that the
       moving party is entitled to ajudgment as a matter of law.

Rule 56(c), M.R.Civ.P.

       This Court reviews an order which grants summaryjudgment de nova and appliesthe

samecriteria as the district court. Fenger v. Flathead County (1996), 277 Mont. 507, 509-

10,922 P.2d 1183, 1184,

       In this case,the District Court’s order is basedon its conclusions of law. We review

conclusionsof law to determinewhether they are correct. Carbon County v. Union Reserve

Coal Co. (1995), 271 Mont. 459,469, 898 P.2d 680, 686.

                               FACTUAL BACKGROUND

       Plaintiffs allegedby complaint that their deceased
                                                        spouses,Charles Edward Lake and

JamesD. Hodik, were injured on June7, 1989, while testing M-l Abrams tanks when those

tanks collided on a test track at Fort Harrison near Helena, Montana. Hodik died from his

injuries on the same date. Lake survived for a period of time, but subsequently died as a

result of his injuries on August 9, 1991.




                                              3
       Plaintiffs allegedthat at the time of the collision which causedtheir husbands’deaths,

both Lake and Hodik were employed by the United StatesDepartment of Defense as civil

service technician-mechanics, and had been employed to operate the tanks owned by the

Department of Defense during a fielding program designedto test the tanks’ mechanical

performance before turning over ownership of the tanks to the State of Montana and its

Department of Military Affairs.

       Finally, the plaintiffs alleged that pursuant to its agreement with the Department of

Defense, the Stateof Montana had a duty to provide a safe and suitable test area, but that it

negligently failed to do so, and that the State’sfailure was a cause of the collision which

causedLake’s and Hodik’s injuries and deaths.

       In answer to the plaintiffs’ complaints,the Stateadmitted that at the time of Lake’s and

Hodik’s injuries they were employed by the United StatesDepartment of Defense as civil

servicetechnician-mechanicsand that the State,through its Department of Military Affairs,

had entered into an agreement with the United States Department of Defense for the

acquisition of severalM-l tanks, which Lake and Hodik were operating at the time of their

collision. However, the State deniedthe remaining allegations of the plaintiffs’ complaints.

       After the two claims were consolidatedby the District Court, the State moved for

summary judgment on several bases. Those baseswhich are relevant to this appeal were

that: (1) the District Court lacked jurisdiction over the two claims because sovereign

immunity had not been waived with regard to activities of the Montana Army National

                                              4
Guard, basedon Evans v. Montana National Guard (1986), 223 Mont. 482,726 P.2d 1160;

and (2) the State cannotbe suedfor injuries to National Guard members which are “incident

to military service,” basedon Feres v. United States(1950) 340 U.S. 135,71 S. Ct. 153,95

L. Ed. 2d 152, and its progeny. In support of its motion for summaryjudgment, the State of

Montana submitted affidavits from Gary Hindoien, Brigadier General, Montana National

Guard; Doug Booker, Centralized Services Administrator of the Department of Military

Affairs for the State of Montana; and Lieutenant Colonel Anthony Morrison.                  Those

affidavits establishedthe following facts which are uncontradicted:

      At the time of their collision on June 7, 1989, Lake and Hodik were federal

techniciansemployedpursuant to 32 U.S.C. 5 709 (1997)’ and were performing duties such


       ‘32 U.S.C. 3 709 provides, in relevant part, as follows:
               (a)    Under regulationsprescribedby the Secretaryof the Army or the
       Secretary of the Air Force, as the casemay be, and subject to subsection (b)
       of this section persons may be employed as technicians in--
                      (1)    the administrationandtraining of the National Guard; and
                      (2)    the maintenance and repair of supplies issued to the
               National Guard or the armed forces.
               (b)    Except as prescribed by the Secretary concerned, a technician
       employed under subsection(a) shall, which so employed--
                      (1)    be a member of the National Guard;
                      (2)    hold the military grade specified by the Secretary
               concerned for that position; and
                       (3)   wear the uniform appropriatefor the member’sgrade and
               componentof the armed forces while performing duties as a technician.
               (c)    The Secretary concerned shall designatethe adjutants general
       referred to in section3 14 of this title, to employ and administer the technicians
       authorized by this section.
               (d)    A technician employed under subsection(a) is an employee of
       the Department of the Army or the Department of the Air Force, as the case

                                               5
aswere contemplatedby 32 U.S.C. 5 709(a)(2), which included the maintenance and repair

of federal equipment. As required by 32 U.S.C. 3 709(b), Lake and Hodik were also

members of the Montana National Guard, but were not in active service of the Guard at that

time and place. As technicians, they were consideredfederal employees and were paid by

the federal government.

       Lake and Hodik, while performing as technicians,were supporting a federally funded

mission to test federally owned tanks under the supervision of the Tank Automotive

Command of the U.S. Army (TACOM). The tanks that they were operating at the time of

their collision belongedto TACOM, which was under the jurisdiction of the Department of

the Army. Hodik and Lake were part of the fielding team which performed under the direct

supervisionof TACOM. The purposeof the fielding team was to test the tanks for the U.S.

Army before turning them over to the Montana National Guard.

       Becausetheir deathswere causedby their collision, Lake’s and Hodik’s beneficiaries

were eligible for various benefits pursuant to their status as federal employees. However,

neither Lake nor Hodik, nor their beneficiaries,have received, nor are they eligible for, any

benefits from the State of Montana, including state retirement benefits, life insurance, or

workers’ compensationbenefits.




       may be, and an employeeof the United States. However, a position authorized
       by this section is outside the competitive service if the technician employed
       therein is required under subsection(b) to be a member of the National Guard.

                                             6
       Lake and Hodik were members of a collective bargaining unit known as the

Association of Civilian Technicians, and were covered by the terms of that Association’s

collective bargaining agreement with the State of Montana while serving as federal

technicians. If they had had a complaint about the terms of their employment on the date of

their injury, they would have been able to express that complaint through the labor

managementgrievanceprocessdetailedin the labor-managementagreement. However, had

they been on active duty for the Montana National Guard, the collective bargaining

agreementand its grievanceprocesswould have beeninapplicable. In that event, they would

have been subject to the Uniform Code of Military Justice.

       In support of its motion for summary judgment, the State contended, pursuant to

Evans, that it had not waived sovereign immunity from claims against the National Guard.

The State also contendedthat, pursuant to Evans, Feres, and Stuuber, the claims on behalf

of Lake and Hodik were barred becausethey were basedon injuries sustained“incident to

military service.”

       In opposition to the State’smotion for summary judgment, the plaintiffs pointed out

that Article II, Section 18, of the Montana Constitution, abolished sovereign immunity;

Article II, Section32, of the Montana Constitution, subjects the Department of the Military

to civilian power; and Article II, Section 16, of the Montana Constitution, provides that

injured workers are entitled to full legal redressfor injuries causedduring the course of their

employment by persons other than their employer or fellow employees. Plaintiffs also

                                              7
contendedthat the Feres and Evans decisionsare distinguishablefrom the facts of this case,

and that the District Court should follow decisionsfrom the State of Washington in Kirtley

v. State (Wash. App. 1987), 748 P.2d 1128, and Emsley v. Army National Guard (Wash.

1986), 722 P.2d 1299.

       The District Court agreedwith the Stateof Montana andheld that pursuantto Stauber,

the Feres doctrine, as adopted in Evans, also applied to the facts in this case. The District

Court therefore held that Lake’s and Hodik’s injuries which caused their deaths were

“incident to military service” and that it lacked subject matter jurisdiction to entertain the

plaintiffs’ complaints. Based on these conclusions,the District Court found it unnecessary

to discussthe other issuesraised in the State’smotion for summaryjudgment. Neither do we

review those issues.

       As stated,the issueon appealis simply whether a person who is allegedly injured by

the negligence of the State of Montana, acting through its Department of Military Affairs,

while in the courseof his employment as a civil service technician employed by the United

StatesArmy, can sue the State of Montana to recover damagesfor those injuries.

       The parties’ respective arguments on appeal mirror those which were made to the

District Court.

       We conclude, based on the reasoning set forth in our recent decision in Trankel v.

State ofMontana (Mont. April 30, 1997),No. 96-026, that Feres is inapplicable to the facts




                                              8
in this case,and that the plaintiffs’ claims are not barred by our prior decision in Evans, nor

by the Ninth Circuit’s decision in Stauber.

       Our conclusion is compelled by Article II, Section 16, of the Montana Constitution,

which provides as follows:

       Courts ofjustice shall be open to every person, and speedyremedy afforded
       for every injury of person, property, or character. No uerson shall be demived
       of this full leeal redress for iniurv incurred in emulovment for which another
       person mav be liable extent as to fellow emulovees and his immediate
       emulover who hired him if suchimmediate emulover urovides coverageunder
       the Workmen’s Comuensation Laws of this state. Right andjustice shall be
       administered without sale, denial, or delay.

(Emphasis added.)

       As we stated in Trankel, No. 96-026, slip op. at 19:

               We reaffirm that pursuant to the second sentencein Article II, Section
       16, of the Montana Constitution, any statute or court decision which deprives
       an employeeof his right to full legal redress,as defined by the generaltort law
       of this state against third parties, is absolutely prohibited. That sentence is
       mandatory and self-executing, and leavesno room for erosion basedon what
       federal courts or the courts of other stateswould do pursuant to federal laws
       or the laws of other states.

       At the time of the injuries for which Lake’s and Hodik’s survivors seekcompensation,

they were employed by the Department of the Army of the United States. The State of

Montana was neither their employer nor a fellow employee, but instead, a third party for

purposesof the application of Article II, Section 16, of the Montana Constitution. Therefore,

pursuant to that constitutional provision, their right to full legal redress is preserved as a




                                              9
matter of state constitutional law, notwithstanding the authorities relied on by the State and

the District Court.

       For these reasons, the judgment of the District Court is reversed. This case is

remanded to the District Court for further proceedingsconsistent with this opinion.




We Concur:
