NO. 92-220 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1992

ANDREWCARL LONG, Plaintiff and Appellant, -vs- MONTANAFOREST PRODUCTS, a limited partnership, Defendant and Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Robert J. Boyd, Judge presiding.

COUNSEL OF RECORD: For Appellant: Mark R. Sullivan, Attorney at Law, Whitefish, Montana For Respondent: Ward E. Taleff and Lisa Swan Semansky, Alexander, Baucus & Linnell, Great Falls, Montana

Submitted on Briefs: August 6, 1992 Decided: September 1, 1992 Filed: Chief Justice 3. A. Turnage delivered the Opinion of the Court. Andrew Carl Long appeals from an order of the District Court

for the Eleventh Judicial District, Flathead County, granting

summary judgment to Montana Forest Products in this action for

trespass. We affirm.

The issue is whether the District Court erred in granting

summary judgment to the defendant.

Long and Montana Forest Products own adjoining land in

Flathead County, Montana. While he was hauling logs from Montana

Forest Products property, Fred Krause crossed Long's property,

destroying some trees. This is the basis for the claim of

trespass. Summary judgment is proper when the pleadings, depositions,

answers to interrogatories, admissions, and affidavits on file show

there is no genuine issue as to any material fact and the moving

party is entitled to a judgment as a matter of law. Rule 56(c),

M.R.Civ.P. All of the evidence before the District Court at the

time of Montana Forest Products' motion for summary judgment showed

that Fred Krause was an independent contractor. His contract with

Montana Forest Products, which was before the court, provided that

he was responsible for building and maintaining all roads he deemed

necessary in order to harvest and market the timber. There was

nothing in the record to indicate that Montana Forest Products

agreed to indemnify, accept responsibility for, or pay for damages

2 caused by Krause. It is established law in Montana that a person

contracting with an independent contractor is not liable vicarious-

ly for the torts of the contractor. Kemp v. Big Horn County Elec.

Co-op. (1990), 244 Mont. 437, 439, 798 P.2d 999, 1001. Long argues that deposition testimony of James C. Morine and

Charlene O'Neil raises material issues of fact which preclude

summary judgment. However, he failed to file these depositions with the District Court. They therefore could not be considered

for purposes of summary judgment.

We hold that the District Court did not err in granting

summary judgment for Montana Forest Products. Pursuant to Section

I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating

Rules, this decision shall not be cited as precedent and shall be

published by its filing as a public document with the Clerk of this

Court and by a report of its result to the West Publishing Company.

Affirmed.

3 We concur: September 1, 1992

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following named:

MARK R. SULLIVAN Attorney at Law 6336 Highway 93 South Whitefish, MT 59937

Ward E. Taleff Lisa Swan Semansky ALEXANDER, BAUCUS & LINNELL, P.C. P.O. Box 2629 Great Falls, MT 59403

ED SMITH CLERK OF THE SUPREME COURT