Summary 2010 WY 29

Summary of Decision issued March 18, 2010

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Case Name: Heimer v. Antelope Valley Improvement and Service District

Citation: 2010 WY 29

Docket Number: S-08-0169

Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge

Representing Appellant (Plaintiffs): Tom C. Toner and Kendal R. Hoopes of Yonkee & Toner, Sheridan, Wyoming.

Representing Appellee (Defendant): Rick L. Koehmstedt of Schwartz, Bon, Walker & Studer, Casper, Wyoming.

Date of Decision: March 18, 2010

Facts: Appellants claim a water main maintained by the Appellees leaked for several years causing damage to their residence. In 2004, the water main broke, allegedly causing additional damage. The Appellants filed a governmental claim against Appellees and subsequently brought suit in district court. The Appellees moved for summary judgment, arguing that the action was barred because Appellants failed to file their governmental claim within the statutory time limit. The district court granted summary judgment.

Issues: Whether there are genuine issues of material fact concerning whether Appellants' claims were timely under Wyo. Stat. Ann. § 1-39-113(a) when Appellants did not discover what was causing the subsidence to their property, despite diligent efforts to do so, until November 19, 2004. Whether the Appellants' claims for damages resulting from the total separation of the Appellee's water main occurring on November 30, 2004, which was a separate incident of negligence, timely under Wyo. Stat. Ann. § 1-39-113(a).

Holdings: The Appellee is a governmental entity. Although governmental entities are traditionally immune from suit under the doctrine of sovereign immunity, the Wyoming legislature recognized "the inherently unfair and inequitable results which occur in the strict application of governmental immunity" and enacted the Wyoming Governmental Claims Act, Wyo. Stat. §§ 1-39-101 through 1-39-121 (2009). Among the provisions included in the Wyoming Governmental Claims Act is the procedure to be followed in pursuing a claim against a governmental entity. Strict adherence to this procedure is required. Wyo. Stat. §§ 1-39-113(a) requires claimants to present their claim within two years of when they knew or should have known, with the exercise of due diligence, of the governmental entity's "alleged act, error or omission." The exact date of the beginning of the leak in this case, and accordingly, the date of the Appellee's alleged act, error or omission is undetermined. The discovery rule contained in the statute is, therefore, squarely at issue.

The application of the discovery rule to a statute of limitations involves a mixed question of law and fact; consequently, the entry of summary judgment on the issue of when a statute of limitations commences to run is typically inappropriate. The question can only be resolved as a matter of law if uncontroverted facts establish when a reasonable person should have been placed on notice of his claim. The Appellee argued, and the District court agreed, that the Appellants discovered that the Appellee's act, error or omission was the cause of the damage to their home at least by September 7, 2004, and their letter of that date demonstrated that discovery thereby and triggered the two year limitation period. That is one plausible interpretation of the evidence.

However, Appellee's reply letter stated that the 'testing' which has been done by Appellants has not eliminated other potential causes of his household problems and that the Appellee was not willing to allow the testing of the water lines absent information from Appellants that they have taken sufficient steps to eliminate other causes. The Appellants engaged a firm to do detailed borehole testing. The results of these tests provided to the Appellants on November 19, 2004, indicated that the excess water was coming from the direction of the Appellee's main. When all of the evidence is reviewed, there appear genuine issues of material fact as to whether the Appellants discovered, or should have discovered, the Appellee's act, error or omission by September 7, 2004, and whether due diligence required the Appellants to discover the continuous water leak prior to November 19, 2004. Those issues of material fact should be determined at trial.

The district court did not separately address the water main break in its summary judgment decision letter, apparently believing the break was related to the long term water leak and thereby governed by the same limitation period. The Appellants argue the break in the water main on November 30, 2004, was a separate incident, involving a separate limitation period. The evidence presented in the summary judgment submissions indicated that the water main separated at a joint, which showed no signs of 'wear markers' which would support a claim of long term leaking problems. That evidence implies that the joint that separated was not the source of a long-term leak. An engineering report indicated that the separation was caused by differential movement in the supporting soil, creating a factual question about the cause of such movement. The answer to that question could raise other factual questions as to whether the separation was caused by an act, error or omission by the Appellee and whether it was related to the alleged water main leak. The facts need to be further developed before the beginning of the limitation period for the water main break can be established. Therefore, summary judgment was inappropriate on this issue. On remand, the fact finder will need to determine whether the water main break involved the same act, error or omission as the alleged long term water leak. If so, then the fact finder's determination on the discovery issue regarding continuous water leak will determine the start of the limitation period for the water main break. However, if the fact finder determines that the water main break was not related to a long term leak, then the date of the break, November 30, 2004, would mark the beginning of a new limitation period and the Appellants' filing of their governmental claim on October 19, 2006 was timely.

Genuine issues of material fact exist as to when the statute of limitation began running on the Appellants' water leak claim. The fact finder must determine when the Appellants discovered or should have discovered the Appellee's "act, error or omission" for purposes of starting the limitation period. Moreover, there are genuine issues of material fact surrounding the commencement of the limitation period on the Appellants' claim for damages associated with the water line break.

Reversed and remanded for further proceedings consistent with this opinion.

J. Kite delivered the opinion for the court.

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