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No. 92-014
IN THE SUPREME COURT OF THE STATE OF MONTANA

MELISSA HEDGES, A minor by and through
PATRICIA HEDGES, her Guardian ad Litem,

Plaintiff and Appellant,
-vs-

SWAN LAKE AND SALMON PRAIRIE SCHOOL DISTRICT
NO. 73, CAROL FIELD, and DOES 1 through 10,

Defendants and Respondents.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:
For Appellant:

H. James Oleson; Oleson Law Firm, Kalispell, Montana
For Respondent:

Todd A. Hammer; Warden, Christiansen, Johnson & Berg, Kalispell, Montana
. ,/
Clerk

Justice Fred J. Weber delivered the Opinion of the Court.

Plaintiff, Melissa Hedges, appeals from the order of the
District Court for the Twentieth Judicial District, Lake County,
granting summary judgment to the defendants. We reverse and
remand.

The issues for our review are:

1.
Did the District Court err in holding that the defendants were immune from suit for negligence under 5 2-9-111, MCA (1991)?

2.
Did the District Court err in denying Ms. Hedge's motion
for reconsideration?



This case was previously before this Court on appeal from an
order granting summary judgment on February 28, 1990. Hedges v.
Swan Lake and Salmon Prairie School Dist. No. 73 (1991), 248 Mont.
365, 812 P.2d 334 (Hedses I). As stated in Hedses I, plaintiff,
Melissa Hedges (Ms. Hedges) was a student at the Swan Lake
Elementary School in Lake County, Montana. Defendant, Carol Field

(Ms. Field) , a teacher, was supervising the playground and had instructed Ms. Hedges to mark where shot puts landed. Ms. Hedges was marking a previous shot put when she was struck by another shot put which had been thrown by Ms. Field. Ms. Hedges was injured and filed a complaint against Ms. Field and the Swan Lake and Salmon Prairie School District, No. 73 (School District).
Defendants moved for summary judgment on the grounds of immunity under 5 2-9-111, MCA (1989). The parties also argued the issue of whether immunity had been waived by the defendants' purchase of liability insurance which the School District had
2

purchased. The District Court granted defendants1 motion for
summary judgment and held the defendants were immune under 5 2-9-
111, MCA (1989), and that the purchase of liability insurance did
not waive immunity. Ms. Hedges appealed. Hedses I.

This Court held that the case of Crowell v. School Dist. No.
7 (1991), 247 Mont. 38, 805 P.2d 522, was controlling, and thus,
the School District was immune from suit for an act or omission of
its llagentm, Ms. Field. Quoting Crowell, we stated:

any negligence on the part of the teacher was associated with action by the School District in that it was the District which established programs and curriculum, including the specific course of instruction and which offered physical education classes as a part of such instruction. We agree with the conclusion of the District Court that the claim for damages arose from the lawful discharge by Mr. Allen of an official duty associated with actions of the School District and its legislative body. We hold that Mr. Allen, the physical education teacher, is immune from suit under 5 2-9-111, MCA.
Crowell, 805 P.2d at 524. We find no factual or
legal distinction between Crowell and the present case.
(Emphasis in original).

Hedses I, 812 P.2d at 335. Thus, in Hedses I, we held that the School District and teacher were immune from suit under 5 2-9-111, MCA (1989). However, based on our holding in Crowell, we also held that the purchase by the School District of liability insurance waived its immunity to the extent of the coverage granted by pertinent insurance policies. In Hedses Iwe reversed and remanded to the District Court.
On May 24, 1991, the day after the decision in Hedses I was issued, the Governor of Montana signed into law Senate Bill 154, significantly amending 9 2-9-111, MCA. The amended statute was
given a retroactive applicability date to all cases not reduced to

final judgment on or before May 24, 1991.

On remand, following the amendment of the statute, the

defendants again moved for summary judgment. The District Court

considered the amended statute, but again granted summary judgment

for the defendants, this time stating:

In granting Defendants' summary judgment motion, this Court holds that the law of this case as established by [Hedcres I] has been modified by the legislative enactment signed into law May 24, 1991. The Defendants are immune from the claims stated in Plaintiff's suit because of Sec. 2-9-111, MCA, and that said immunity has not been waived by the liability insurance because of the retroactive amendment to said statute enacted by the legislature before this cause was reduced to final judgment.
In so holding, this Court rejects the argument of Plaintiff that the legislative amendments to Sec. 2-9-111, MCA changed the immunity provided to Defendants. This Court concludes that the rationale of the Supreme Court in applying the facts of this case to the controlling law as set forth in Crowell . . . would result in the same holding of immunity for all of the Defendants herein regardless of whether Sec. 2-9-111, MCA is construed either before or after the May 24, 1991 amendments thereto. This court holds that the lesislative chancres to the first three sections of said statute did not remove or limit the immunity which resulted from the ~urchase of liabilitv insurance. The Defendantsare therefore now entitled to Summarv Judament as a matter of law on all claims in piaintiffts Complaint. (Citations omitted). (Emphasis added).
Ms. Hedges appeals.

Did the Dist,rict Court err in holding that the defendants were

immune from suit for negligence under

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