Hyde v. Evergreen Rural Fire Dept.

Can You Sue a Montana Rural Fire Department If Your House Burns Down? Hyde v. Evergreen Volunteer Rural Fire Department, 252 Mont. 299, 828 P.2d 1377 (1992)

Boland Aarab PLLP

Generally not for how it fought the fire. In Hyde v. Evergreen Volunteer Rural Fire Department, 252 Mont. 299, 828 P.2d 1377 (1992), a divided Montana Supreme Court held that § 7-33-2208, MCA, made a rural fire district immune from a negligence suit over its efforts to suppress a fire that destroyed a Flathead County home, and that buying liability insurance did not waive that immunity. Three justices dissented at least in part, and Justice Trieweiler, joined by Justice Hunt, agreed with the homeowners on every issue.

Key Takeaways

• The fire-suppression immunity in § 7-33-2208, MCA extends to rural fire districts formed under Title 7, chapter 33, part 21, not only to units formed under part 22 (Hyde, 252 Mont. at 303).
• A fire district’s purchase of liability insurance does not waive that immunity; Crowell v. School Dist. No. 7 did not apply (252 Mont. at 304).
• Claims that the department lacked a properly equipped truck and trained crew were treated as part of the fire-suppression activity and were barred (252 Mont. at 304–05). Justices Gray, Trieweiler and Hunt disagreed on that point (252 Mont. at 305, 309).
• Under Mont. Const. art. II, § 18, governmental immunity exists only where the Legislature provides it by a two-thirds vote of each house (252 Mont. at 303, 307).

In this case sheet: At a glance · What the Court held · Our position and how the Court differed · What changed · Statutes · When it applies · How hard · FAQ

The practice Tom Boland built is the practice that handles your case today. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in Hyde v. Evergreen?

On January 26, 1987, the Evergreen Volunteer Rural Fire Department was called to a fire at Tom and Carol Hyde’s home. Volunteers made several attempts to put it out that day and into the next morning, but the home and belongings, valued at over $247,000, were destroyed (252 Mont. at 301). The Hydes sued for negligence in fighting the fire. The District Court granted summary judgment to Evergreen on the ground of statutory immunity (252 Mont. at 300–01).

The majority affirmed on three issues:

1. Immunity covers part 21 fire districts. Section 7-33-2208 (1985) made a “chief or deputy and the county or rural district” immune from suit for injury resulting from “actions taken to suppress fires under this section.” The Hydes argued that the statute, which sits in part 22, did not reach Evergreen, a fire district formed under part 21. After reviewing the statute’s history back to 1945, the majority concluded that “rural district” is a part 21 term and that immunity extended to part 21 districts. It saw “no logic or reason” for making immunity depend on how a firefighting unit was formed (252 Mont. at 301–03).
2. Insurance did not waive immunity. Crowell v. School Dist. No. 7 (1991) had held that a school district waived its immunity to the extent of its liability insurance. The majority found Crowell rested on a legislative pattern specific to § 2-9-111, MCA, with no parallel for § 7-33-2208 (252 Mont. at 304).
3. No fact issue. The Hydes argued that failing to have a properly equipped truck and trained crew happened before any fire suppression began. The majority held that any damage caused by Evergreen still resulted from its suppression activity at the fire (252 Mont. at 304–05).

What did Tom Boland argue, and how did the Court differ?

Our position. Tom argued that the immunity statute, found in part 22 and tied to “actions taken to suppress fires under this section,” did not protect a fire district organized under part 21 (252 Mont. at 301). He argued that under Crowell, a fire district that bought liability insurance waived immunity to the extent of its coverage (252 Mont. at 304). And he argued that the Hydes’ claims about inadequate equipment and training concerned negligence that occurred before the fire, outside the immunity (252 Mont. at 304).

The majority’s view. The majority read the statute’s language and history to cover part 21 districts, distinguished Crowell, and treated the equipment and training claims as part of fire suppression (252 Mont. at 303–05).

The dissents agreed with us.

• Justice Gray agreed with the majority on immunity and insurance, but not on the third issue. In her view the District Court’s order was effectively a dismissal based on immunity alone, and the majority engaged in “unstated fact-finding” about whether the damage came from conduct during the fire or from negligence before it. She would have remanded (252 Mont. at 305).
• Justice Trieweiler dissented “from every part of the majority opinion.” Presuming the Hydes’ allegations true, the department left the burning home three times while fire and smoke remained, before the house was lost on the fourth call (252 Mont. at 305–06). He wrote that immunity “should never be found unless established in a constitutional manner and made perfectly clear,” that statutes in derogation of the constitutional right to sue should be strictly construed, and that part 22’s immunity did not reach part 21 districts (252 Mont. at 305–08). He would have applied Crowell to the department’s $1 million liability policy, and he agreed with Justice Gray on the third issue (252 Mont. at 306, 308–09).
• Justice Hunt joined both separate opinions (252 Mont. at 309).

What did Hyde change in Montana law?

Hyde settled, for the 1985 version of the statute, that rural fire districts formed under part 21 share the fire-suppression immunity in § 7-33-2208. It also held that Crowell‘s insurance-waiver reasoning does not carry over to that statute (252 Mont. at 303–04).

The Legislature has since broadened the statute. The Court noted that a 1989 amendment already extended immunity to fire companies and fire service areas (252 Mont. at 303–04). The current statute, amended again in 1997 and 2017, covers “the county, rural district, fire company, or fire service area,” extends to actions under the mutual-aid statute, § 10-3-209, and to decisions not to provide requested assistance, and protects property owners from liability for volunteer firefighters’ acts on their land (§ 7-33-2208(2)–(3), MCA). The core holding of Hyde, that a rural fire district is immune from suit over how it fought a fire, is consistent with the current text.

A CourtListener search found no later opinions citing Hyde, so it appears to be rarely cited.

Which Montana laws and rules apply?

• § 7-33-2208, MCA: fire control powers and liability. Still in force. Hyde applied the 1985 text. The statute was amended in 1989, 1997 and 2017, and the current version is broader than the one the Court construed.
• § 2-9-111, MCA: immunity for legislative acts. After Crowell, the 1991 Legislature added the provision that acquiring insurance does not waive this immunity (252 Mont. at 304; now § 2-9-111(4)).
• Mont. Const. art. II, § 18: the State and local governments have no immunity from suit except as specifically provided by a two-thirds vote of each house of the Legislature (252 Mont. at 303, 307)
• § 1-2-101, MCA: the judge’s role in construing statutes, quoted in the Trieweiler dissent (252 Mont. at 306)
• M. R. Civ. P. 56: summary judgment

When might Hyde apply to you?

• A home or building is lost despite a fire response. Claims against a rural fire district over how the fire was fought face the immunity in § 7-33-2208.
• A claim against any local government. Montana’s Constitution makes government answerable for injury unless the Legislature has created immunity by a two-thirds vote, so the first question is whether a specific immunity statute applies.
• The government entity has insurance. Insurance does not automatically waive a statutory immunity. Whether it does depends on the particular statute.

How hard is it to overcome governmental immunity in Montana?

• Immunity is decided early. In Hyde, the case ended on summary judgment on the immunity question (252 Mont. at 300).
• Summary judgment standard. The Court views the evidence in the light most favorable to the non-moving party, but the Hydes’ claims still fell within the immunity (252 Mont. at 304–05).
• Statutory text and history control. The outcome turned on the wording of the immunity statute and its legislative history (252 Mont. at 301–03).
• Close cases split the Court. Three of seven justices would have let at least part of the Hydes’ case go forward (252 Mont. at 305, 309).

The Boland Aarab Way

Thomas E. Boland represented the Hydes and argued their appeal. The appeal was lost, but three justices agreed with at least part of his position, and two agreed with all of it. We publish our losses alongside our wins because they show how Montana law develops, and because a strong dissent often frames the next argument. Tom practiced in Great Falls from 1979, after his admission to the bar in 1974. His daughter, Caitlin Boland Aarab, and Samir F. Aarab founded Boland Aarab PLLP in 2017 as the successor to his practice. Questions of who can be held responsible, and whether immunity applies, still arise in the serious trucking and injury cases and catastrophic injury cases the firm handles today.

Frequently Asked Questions

Are Montana rural fire departments immune from negligence lawsuits? For injury resulting from actions taken to suppress fires, yes. Hyde held that § 7-33-2208, MCA, extends that immunity to rural fire districts (252 Mont. at 303).

Does a fire department’s liability insurance waive its immunity? Not under § 7-33-2208. Hyde held that buying liability insurance did not waive the statutory immunity (252 Mont. at 304).

Can Montana governments claim immunity whenever they want? No. Under Mont. Const. art. II, § 18, governmental immunity exists only where the Legislature specifically provides it by a two-thirds vote of each house (Hyde, 252 Mont. at 303, 307).

Work With the Lawyers Behind These Cases

The practice Tom Boland built continues today as Boland Aarab PLLP, a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• Hyde v. Evergreen Volunteer Rural Fire Department, 252 Mont. 299, 828 P.2d 1377 (1992) (opinion PDF, CourtListener)
• Hyde v. Evergreen (1992), opinion text (CourtListener)
• § 7-33-2208, MCA
• § 2-9-111, MCA
• Mont. Const. art. II, § 18
• § 1-2-101, MCA
• M. R. Civ. P. 56

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.