                             No.    95-330
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1996


EVELYN SUMNER,
          Plaintiff and Respondent,
     v.
                                                        FE-j   -i   ‘1!?%
PIONEER READY MIX,
a Montana Corporation,
          Defendant and Appellant.



APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                 James M. Kommers, Esq., Daniel J. Roth, Esq.;
                 Kommers & Roth, Bozeman, Montana

          For Respondent:
                 Monte D. Beck, Esq., John J. Richardson, Esq.;
                 Beck Law Offices, Bozeman, Montana



                             Submitted on Briefs:         December 7, 1995
                                             Decided:      February 1, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.


     Pursuant to Section I, Paragraph 3(c), Montana           Supreme Court

1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to Montana Law Week,      State    Reporter    and   West   Publishing
Company.
     Pioneer Ready Mix (Pioneer) appeals from the Gallatin County,
Eighteenth Judicial District Court's Order granting Evelyn Sumner
(Sumner) Judgment Notwithstanding the Verdict and New Trial. The
court found that it made two            errors during trial justifying
judgment notwithstanding the verdict and new trial.                First, the
issues     of negligence and causation were          included in a single
question on a special jury verdict           form.      Second,    the court
determined it should have granted Sumner's Motion for a Directed
Verdict on negligence.      Consequently,    the court vacated the jury
verdict for Pioneer,     entered judgment in favor of Sumner on the
issue of negligence,      and ordered a new trial on the remaining
issues.     We affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
     Pioneer raises three issues on appeal:
1.   Did the District Court err by granting Sumner's Motion for
Judgment Notwithstanding the Verdict by concluding that Pioneer was
negligent as a matter of law?
2.   Did the District Court err by granting Sumner's Motion for
Judgment Notwithstanding the Verdict because a blended verdict form
was used?

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3.   Did the District Court err by granting a Motion in Limine to
prohibit the expert medical testimony of Dr. Roger S. Williams?
       Since this matter is being remanded for a new trial, we set
out only the barest of facts.      Pioneer Corporation specializes in
road     construction.   In the summer of 1991,   Pioneer workers were
repairing asphalt driveways on Yellowtail Road in Big Sky, Montana.
Pioneer employee, Camilla Daly (Daly) drove a fourteen-ton llBROStl
gravel roller down Yellowtail Road on the date of the accident,
July 22, 1991. As Daly drove down Yellowtail Road, the BROS popped
out of gear and proceeded out of control into the driveway of
Sumner's son's house and crashed into Sumner's parked automobile.
Sumner was standing near her vehicle which was parked in the
driveway when she saw the BROS coming directly at her.             She
testified that she threw herself to the left to escape being hit.
She alleges this action injured her back.
       In January of 1995, this matter went to trial before a twelve
person    jury.    Both parties moved for and were denied directed
verdicts.      In response to the parties' motions, the court stated:
            THE COURT: All right. Counsel, I think it would be
       inappropriate for the Court to enter summary judgment for
       either side in this case. I think there are controverted
       facts that are appropriate for a jury to deliberate
       about.    Essentially, if I were to enter a directed
       verdict in behalf of either side, I would be taking the
       case away from the jury.    I don't think that would be
       appropriate under the factual circumstances presented,
       and I don't think that there is established liability as
       a matter of law in this case.      I think that's a jury
       question, so the motion will be overruled made by the
       plaintiff.     Motion will be overruled made by the
       defendant.
       The jury returned a nine to three verdict for Pioneer by
answering     "No" to the Special Verdict Question which asked: "Was
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Defendant Pioneer Ready Mix negligent, and was its negligence the
cause of injury to the Plaintiff Evelyn Sumner?"             Sumner filed a
Motion for Judgment Notwithstanding the Verdict and New Trial on
damages, or,   in the alternative,       a new trial on all the issues.
The District Court granted Judgment Notwithstanding the Verdict and
New Trial on two bases.        First,   because the issues of negligence
and causation were included in a single question on the special
jury verdict form.        Second,    the court determined it should have
granted Sumner's Motion for a Directed Verdict on negligence
because "it is negligence as a matter of law to put any vehicle on
public roadways which cannot be stopped."          Therefore, the court
found that the jury verdict should be vacated, judgment entered in
favor of Sumner on the issue of negligence, and a new trial held on
the remaining issues of causation and damages.
     Pioneer does not challenge the District Court's granting of a
new trial.     In fact,    Pioneer requested that the District Court
limit its ruling to a grant of new trial on all issues rather than
judgment   notwithstanding     the   verdict.   It is undisputed that,
absent settlement, this case will be retried.        Thus,    the questions
remaining are whether negligence exists as a matter of law, whether
it was error to include negligence and causation in one verdict
question, and whether the District Court erred in granting Sumner's
Motion in Limine to prohibit Dr. Roger S. Williams' testimony.
1.   Did the District Court err by granting Sumner's Motion for
Judgment Notwithstanding the Verdict by concluding that Pioneer was
negligent as a matter of law?
     The District          Court granted Judgment Notwithstanding the
Verdict on the grounds that it should have granted Sumner's Motion
for a Directed Verdict on negligence following the close of
Pioneer's    case-in-chief.         The court reasoned that:
      [Ilt is negligence as a matter of law to put any vehicle
     on public roadways which cannot be stopped. The precise
     evidence in this case was that the Defendant's road
     roller was unable to stop, either due to inadequate
     brakes or negligent operation. Furthermore, the roller
     was unable to be voluntarily steered, which caused it to
     veer off the public roadway and collide with Plaintiff's
     vehicle in a private driveway.
     In considering a motion for judgment notwithstanding the
verdict,    the court must view all of the evidence in a light most
favorable    to    the   non-moving       party.     Nelson v. Flathead Valley
Transit (1992), 251Mont. 269, 271-72,                824 P.2d 263, 265; Nicholson
v. United Pacific Ins. Co. (1985), 219 Mont. 32, 710 P.2d 1342.
The motion may only be granted if it appears as a matter of law
that the non-moving party could not recover upon any view of the
evidence,    including legitimate inferences to be drawn from it.
Kapner, Wolfberg & Assoc. v. BC/BS (1995), 270 Mont. 283, 285, 891
P.2d 530,    532; Nelson,          824 P.2d at 265.         Therefore,   to grant
judgment    notwithstanding         the    verdict    there must be a lack of
substantial evidence to support the jury verdict.                Kaoner, 891 P.2d
at 532; Nelson, 824 P.2d at 265.                This Court's standard of review
of a ruling       on a motion   for judgment notwithstanding the verdict is
whether substantial evidence supported submission to the jury.
Kawner, 891 P.2d at 532.
     Sumner relies on Garza v. Peppard (1984), 213 Mont. 25, 689
P.2d 279,    for the proposition that Pioneer was negligent as a
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matter of law.          In Garza, we upheld the district court's judgment
notwithstanding the verdict because the defendant was negligent as
a matter of law for failing to keep a proper lookout while         driving.

Under Montana law, a motorist has a duty to keep a proper lookout.
Garza,   689 P.2d at 280.         In Garza there were no other consider-
ations   such as bad weather,             poor visibility or contributory
negligence,    to mitigate the defendant's negligence, thus, we held
that 'I [tl he only reasonable conclusion is that Peppard failed to
keep a proper lookout."         G
                                ,arza     689 P.2d at 280-81.
     However,       in the instant case,       the court did not focus on
Pioneer's     or Daly's       negligent    conduct.   Rather,   the court's
rationale that it is negligence as a matter of law to put any
vehicle on public roads which cannot be "voluntarily steered" or
stopped due to inadequate brakes or negligent operation, improperly
focuses on the design or capability of the vehicle and thus
confuses product liability theory with negligence of the operator
or owner.      Under the terms of the pretrial order, this suit was
tried solely as a negligence case, defective design or manufacture
of the roller's brakes were not at issue.                 In light of this

confusion     of    legal   theories,     we hold that the court erred in
concluding,        as   a matter of law,      that Pioneer was negligent.
Accordingly we reverse the judgment notwithstanding the verdict and
remanded for a new trial on all issues.
2.   Did the District Court err by granting Sumner's Motion for
Judgment Notwithstanding the Verdict because a blended verdict form
was used?
     Pioneer has raised three issues on appeal.          Its first and
second issues both challenge the propriety of granting judgment
notwithstanding the verdict.     The third issue raises an evidentiary
question.        None of the issues raised on appeal challenge the
granting    of    a new trial.   In addressing the first issue and
remanding for a new trial on all issues, we have already determined
that the judgment notwithstanding the verdict was improperly
granted and must be reversed.       Accordingly,   there is no need to
again analyze the judgment notwithstanding the verdict in light of
the blended jury verdict form.          We note,    however,   that the
preferable approach is to not use blended jury verdict questions.
It is much easier to analyze jury findings if questions as to
negligence and causation are posed separately.
3 . Did the District Court err by granting a Motion in Limine to
prohibit the expert medical testimony of Dr. Roger S. Williams?
     After the accident, Sumner's auto insurance carrier paid some
of her medical costs.       The auto insurance company retained Dr.
Williams to determine if the medical payment coverage on Sumner's
vehicle should continue to pay for her medical bills.          After Dr.
Williams' examination and report, Sumner's auto insurer refused to
further pay Sumner's medical bills.
     Pursuant to Rule 35(a), M.R.Civ.P., Pioneer moved to allow Dr.
Williams to perform an independent medical examination of Sumner.
The District Court denied Pioneer's motion.          Pioneer then gave
notice that it intended to take and introduce the deposition of Dr.
Williams. Sumner moved to quash Dr. Williams' deposition and moved


                                    7
for a protective order regarding testimony and evidence, such as
medical reports, received from Dr. Williams.
     The District Court granted Sumner's motion on the                 following

grounds: Permitting the testimony and introduction of Dr. Williams'
medical examination of Sumner would violate the collateral source
rule and the rule precluding introduction of insurance matters; the
potential prejudice to Sumner of permitting Dr. Williams to testify
outweighed the probative value of the evidence to be presented; and
Pioneer had the opportunity to have Sumner "examined by its own
medical   expert,   an   opportunity    specifically    granted   by    previous
Court Order pursuant to Rule 35."
     On   appeal, Pioneer argues that "[mlost all doctors are paid by
insurance companies these days."             Additionally,   Pioneer    contends
that the court should have narrowed its ruling to allow Dr.
Williams to testify under appropriate safeguards to keep disclosure
of his link with Sumner's insurance company from the jury.
     Our standard of review of evidentiary rulings is whether the
district court abused its discretion.              Seizure of $23,691.00 in
U.S. Currency (Mont. 1995), 905 P.2d 148, 152, 52 St.Rep.                 1063,
1065. The district court has broad discretion to determine whether
or not evidence is        relevant     and    admissible,    and we will not
overturn the district court's determination absent a showing of
abuse of discretion.       Seizure of $23.691.00, 905 P.2d at 152.
     Pursuant to § 27-l-307(1), MCA, the definition of collateral
source is "a payment for something that is later included in a tort
award and which is made to or for the benefit of a plaintiff or is

                                        8
otherwise available to the plaintiff."               Specifically,     health    or
automobile accident insurance that provide health benefits or
income disability coverage to the plaintiff, is a collateral
source.     Section 27-l-307(1) (b), MCA.           Under 5 27-l-308(3), MCA,
the jury cannot consider any collateral sources in determining its
award.     Additionally,      we have held that allowing the admission of
collateral source evidence can be reversible error.                    Thomsen v.
State Dep't of Highways (1992), 253 Mont. 460, 464, 833 P.2d 1076,
1078.     In Thomsen, we recognized the strong likelihood of prejudice
resulting from the introduction of collateral source evidence such
as the availability of medical insurance.             833 P.2d at 1078. Thus,
admission of collateral source evidence should be permitted only
upon     such    persuasive    showing that the evidence sought to be
introduced is of substantial probative value.             Thomsen, 833 P.2d at
1078.
        Accordingly,     the District       Court    correctly   excluded       the
testimony of Dr. Williams as potential collateral source evidence.
Sumner would have been unreasonably limited on cross-examination
because she would not have been able to explore Dr. Williams'
biases, prejudices, and ulterior motives, if any, without revealing
that Dr. Williams worked for and was paid by Sumner's own insurance
carrier.        Additionally, Pioneer did not persuasively show that Dr.
Williams'       testimony was of sufficient substantial probative value
to outweigh its potential prejudice to Sumner.                   Dr.    Williams'
testimony        was   unnecessary    because       an   independent      medical
examination could have been performed by another physician.                     The

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court did not preclude Pioneer from obtaining an independent
medical    examination.     In fact, Pioneer moved for a continuance of
the trial in order to have an independent medical examination by a
mutually    agreed    on   physician,   but later decided not to submit
Sumner to an independent medical examination.            An   independent
medical examination under Rule 35, M.R.Civ.P., is a nonadversarial
procedure. Mohr v. District Court (1983), 202 Mont. 423, 428, 660
P.2d 88, 89.         The District Court declined to require Sumner to
submit herself to examination by a doctor she found offensive: "I
think it would be absolutely wrong to force the plaintiff in this
case   to go to a doctor that she evidently detests,              has no
confidence in, doesn't want to be submitted to . . .'I           We hold
that the District Court did not abuse its discretion in excluding
Dr. Williams' testimony and participation as an independent medical
examiner.
       Affirmed in part, reversed in part, and remanded for a new
trial on all the issues.




             Justices

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