Fire victim's family awarded $1.2 million by tribal court

2013-02-21T00:00:00Z 2014-08-25T06:35:21Z Fire victim's family awarded $1.2 million by tribal courtBy ED KEMMICK The Billings Gazette
February 21, 2013 12:00 am  • 

A Wolf Point businessman has been ordered to pay $1.27 million to the estate of a Fort Peck tribal member who died in a house fire in 2004.

The suit against Marvin Presser, the owner of High Plains Motors, was filed by the parents and siblings of Sloan Follett. He and Sayra Mahto, who was renting a house at 221 Edgar St. in Wolf Point from Presser, were killed when the house was destroyed by a fire on April 27, 2004. The house was on the Fort Peck Reservation.

The tribal court had already ruled in 2009 that Presser was liable for the fire, and last week, after a day-and-a-half trial on damages, a six-person jury awarded the Follett estate a judgment of $1,271,000. Presser was also ordered to pay legal fees of $6,315 to the plaintiffs' attorney, David Irving of Glasgow.

Presser said he intends to appeal the judgment and finding of liability to the Fort Peck Tribal Court of Appeals and beyond that to U.S. District Court if necessary.

Presser also said that the drawn-out legal proceedings have been a travesty, and that court officials have consistently ignored evidence demonstrating he was not responsible for the fire.

Irving countered that Presser has already "delayed justice for five years" and that 27 witnesses had all testified that the house owned by Presser was basically a fire trap.

He said Presser was found liable by the tribal court because he intentionally destroyed evidence. When either party to a lawsuit destroys evidence, Irving said, "the judges tend to get a little testy."

Follett's family filed the civil lawsuit against Presser in 2007, saying his "gross negligence" was to blame for the house fire. Wolf Point attorney Terrence Toavs had originally filed a suit on behalf of the families of Follett and Mahto, but Irving said Toavs decided he couldn't handle both, so Irving filed a separate suit on behalf of the Follett estate.

Irving said he didn't know the status of the Mahto family lawsuit against Presser, and Toavs could not be reached for comment.

In May 2007, shortly after the fire, the tribal court ordered Presser not to demolish what remained of his house. That summer, Presser said, he was ordered by the tri-county sanitarian and the city of Wolf Point to remove the burnt house.

On the advice of his attorney at the time, Presser said, he finally demolished the house on Jan. 26, 2005, but only after inspecting the electrical system with two attorneys and three electricians.

He said none of the electricians found any fault with the system. He said he also removed the breaker box and electrical outlets in case they were needed later to establish the cause of the fire. More than two years later, the estate of Follett filed the civil suit against Presser.

In 2009, the tribal court had granted the plaintiffs' motion for partial summary judgment. In that judgment, the court determined that Presser had destroyed evidence by demolishing the house.

As a result of that destruction of evidence, the court ruled, Presser "was sanctioned with a finding of liability."

Irving said the judge ruled that because parts of the electrical system were removed from their context, Presser had destroyed the foundation of their use of evidence — both for the plaintiffs and for his own defense.

Irving said Presser "sort of goes into the house in the middle of the night and steals evidence ... and the bottom line is, he knew what he was doing."

Because of the finding of liability, the trial that concluded last week was intended only to determine damages, and Presser was prohibited from offering any evidence as to the cause of the fire, Follett's own liability for the fire and the question of the tribal court's jurisdiction in the case.

Presser said he wanted to present evidence from a deputy state fire marshal and an investigator with the Bureau of Alcohol, Tobacco, Firearms and Explosives, both of whom concluded the fire started in or near a couch by the front door of the residence. Both investigators also said they found no problems with the house's electrical system.

The ATF report also stated that Follett and Mahto both had blood-alcohol readings above the legal limit for driving a vehicle, and both had nicotine in their systems.

Irving said the court heard a lot of evidence pointing to Presser's liability — including the testimony of the 27 witnesses, going back many years. Irving said they testified that appliances often smoked or burst into flames when plugged into outlets.

Irving also said the back door was nailed shut and the house had no smoke detectors.

"Let's call it what it is," Irving said. "He was a slumlord."

On the issue of jurisdiction, Presser said Follett's family originally claimed that he was a tenant of Presser's. He said there would normally have to be a contractual or business relationship between a tribal member and a nontribal person like himself for the tribal court to have jurisdiction.

He said he assumed Follett was described as his renter in order to establish a contractual relationship between them, even though the family's attorneys never presented any evidence that Follett had actually rented from him.

In later court documents, it was acknowledged by both sides that Follett was not renting from Presser. But that fact is immaterial, Irving said, because Montana state law says landlords have a duty to both tenants and visitors to maintain a safe premises.

Irving said there were at least five other valid reasons the tribal court had jurisdiction in the case. One was that Presser was himself a regular in tribal court, often going there to repossess cars from tribal members who had stopped making payments.

Irving said the court held that Presser couldn't have it both ways, using the tribal court when it suited him and then saying he was outside its jurisdiction in this  case.

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