Power firm asks court to combine shoreline cases

 A former operator of Kerr Dam is set to go to trial in October over whether it is liable for damage to the shoreline caused by water-level fluctuations on Flathead Lake.  

PPL Montana, however, filed a motion with the Montana Supreme Court on June 9 asking that the same jury hear the split case in Flathead County.  

Flathead District Judge Katherine Curtis is presiding over the case and previously found that the class action suit could go forward with a class of defendants who had shoreline erosion in the fall during the years 2000-06. 

The lawsuit originally was filed by Rebecca Mattson (who has since died) in 1999 and has been sent to the Montana Supreme Court on multiple occasions. In 2015, one of the former operators of the dam, Montana Power, settled with more than 3,000 plaintiffs for an undisclosed amount of money. 

Earlier this year, Curtis ordered that the case be split with one jury hearing whether PPL is liable for shoreline erosion and another jury determining what damages should be awarded if the plaintiffs prevail. 

PPL said in its writ for supervisory control that it believes this is a violation of the Seventh Amendment. 

“The liability and damages phases of this case cannot be tried to separate juries without violating the Seventh Amendment’s mandate that facts tried to one jury may not be re-examined by any subsequent jury,” PPL Montana attorney Sean Morris wrote in his filing to the high court. “Simply, there is no possibility that a liability jury could take its hard-earned knowledge about the reasonableness or unreasonableness of erosion affecting some 3,000 properties and somehow pass that knowledge off to subsequent damages juries.” 

Morris claims that splitting the case could result in an indefinite number of trials in determining damages and tax the Flathead County and state court docket because there are so many plaintiffs. 

“PPL therefore respectfully requests that this court exercise supervisory control and direct the District Court to order that all issues must be tried to a single jury,” Morris wrote. 

Judge Curtis ruled against similar arguments in Flathead District Court in March. She ruled that PPL Montana had not opposed splitting the trial when it was ordered 2014. She also found that a prior ruling by the Montana Supreme Court in the same case mandated that the trial be divided. 

“Furthermore, as recognized by the court and parties when bifurcation was previously considered, the Montana Supreme Court ... essentially mandated bifurcation in ruling that the issue of reasonableness of the operation of the dam was ‘incapable of being resolved on a property-by-property basis,’ 

whereas ‘the amount of damages ...will then have to be determined on a property-by-property basis,’” Curtis wrote. 

Curtis wrote that she does not believe splitting the case violates the Seventh Amendment. 

Reporter Megan Strickland can be reached at 758-4459 or mstrickland@dailyinterlake.com.