Summary 2014 WY 26

Summary of Decision February 21, 2014

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: LEWIS HOLDING COMPANY, INC., a Wyoming Corporation v. FORSBERG ENGERMAN COMPANY, a Colorado Corporation, NTA, INC., an Indiana Corporation, and LEXINGTON INSURANCE COMPANY

Docket Number: S-13-0093

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sheridan County the Honorable John G. Fenn, Judge

Representing Appellant: James P. Castberg, Castberg Law Office, Sheridan, Wyoming.

Representing Appellee, Forsberg Engerman Company: Weston W. Reeves and Anna M. Reeves Olson, Park Street Law Office, Casper, Wyoming. Argument by Ms. Olson.

Representing Appellees, NTA, Inc. and Lexington Insurance Company: Jason A. Neville and David E. Shields, Williams, Porter, Day & Neville, P.C. Casper, Wyoming. Argument by Mr. Shields.

Date of Decision: February 21, 2014

Facts: In this insurance coverage dispute, the district court granted summary judgment in favor of defendants Lexington Insurance Company, NTA, Inc., and Forsberg Engerman Company, and against plaintiff Lewis Holding Company, Inc. Lewis Holding challenges that ruling on appeal.

Issues: Lewis Holding presents two issues: 1. Did the trial court err in granting the defendants’ motions for summary judgment on the issue of estoppel? 2. Did the trial court err in granting the defendants’ motions for summary judgment on the issue of breach of the covenant of good faith and fair dealing?

Holdings/Conclusion: In the current case, the insurance agreement between Lewis Holding and Lexington plainly and unambiguously excludes coverage for damages due to mechanical failure. The doctrine of estoppel cannot be used to extend the insurance coverage to include risks that are expressly excluded by the policy. The district court did not err in granting summary judgment in favor of Lexington and NTA. We agree with Forsberg’s assertion. Forsberg was the agent who helped Lewis Holding obtain its insurance, but it is not a party to that insurance policy. Lewis Holding does not contend that Forsberg agreed to assume liability under the insurance policy, and it offers no other factual basis or legal theory for holding Forsberg liable under the insurance policy. The district court correctly granted Forsberg’s motion for summary judgment. We have previously concluded that Lexington, NTA, and Forsberg were not liable to Lewis Holding under the insurance policy. This conclusion also establishes that these parties had reasonable bases for denying Lewis Holding’s claim. We therefore affirm the district court’s grant of summary judgment in their favor on Lewis Holding’s claim for breach of the covenant of good faith and fair dealing.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 206

Summary of Decision September 13, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: GEORGE M. SONNETT, JR. and WENDY Z. BURGERS SONNETT, Husband and Wife v. FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, and FIRST AMERICAN TITLE INSURANCE COMPANY OF SUBLETTE COUNTY, a Wyoming corporation

Docket Number: S-12-0237

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sublette County the Honorable Marvin L. Tyler, Judge

Representing Appellant: George M. Sonnett, Jr. and Wendy Z. Burgers Sonnett of Washington, Virginia, pro se. Argument by Mr. Sonnett and Ms. Burgers Sonnett.

Representing Appellee: Stuart R. Day and Keith J. Dodson of Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Day.

Date of Decision: September 13, 2013

Facts: The appellants, George M. Sonnett, Jr. and Wendy Z. Burgers Sonnett, filed a complaint against the appellees, First American Title Insurance Company and First American Title Insurance Company of Sublette County (collectively “First American”). In their complaint, the Sonnetts alleged that First American breached the terms of the title insurance policy, was negligent, and acted in bad faith when it determined that damages the Sonnetts claimed they incurred due to a “Master Plan” associated with their property was not covered under the title insurance policy. After the parties filed competing motions for summary judgment, the district court granted summary judgment in favor of First American and dismissed the Sonnetts’ complaint. The Sonnetts now appeal that decision and other procedural matters.

Issues: 1. Did the district court err when it granted summary judgment in favor of First American regarding the Sonnetts’ breach of contract claim? 2. Did the district court err when it granted summary judgment in favor of First American regarding the Sonnetts’ bad faith denial of coverage claim? 3. Did the district court err when it granted summary judgment in favor of First American regarding the Sonnetts’ claims of negligence? 4. Did the district court abuse its discretion when it considered a decision letter it previously issued in a different civil action involving the Sonnetts and the same property at dispute in the present case? 5. Did the district court abuse its discretion when it struck portions of the Sonnetts’ affidavits that were attached to their motion for summary judgment? 6. Did the district court err when it granted First American’s motion for summary judgment despite the fact that it had already ordered the parties to mediate the case?

Holdings: These “arguments,” as presented by the Sonnetts, are substantively deficient. They lack any cogent argument or citation to relevant authority. Instead, they simply are conclusory allegations. We find that the district court properly granted summary judgment in favor of First American on all claims brought in the Sonnetts’ complaint. The order of the district court is affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 74

Summary of Decision June 17, 2013

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: NICHOLAS M. MONTEE v. THE STATE OF WYOMING

Docket Number: S-12-0166

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, Honorable Thomas T.C. Campbell, Judge

Representing Appellant (Plaintiff/Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Darrell D. Jackson, Director, Emily N. Thomas, Student Director, and Shaina A. Case, Student Intern, Prosecution Assistance Program, University of Wyoming, College of Law.

Date of Decision: June 17, 2013

Facts: Nicholas M. Montee was convicted of second degree arson. His claim on appeal is that there was insufficient evidence to support his conviction.

Issues: Mr. Montee presents a single issue: Was there sufficient evidence to support a conviction of second degree arson? The State presents the same issue with more elaboration: Under Wyo. Stat. Ann. § 6-3-102(a), a person is guilty of second degree arson if he starts a fire with intent to destroy or damage property to collect insurance. At trial, the State presented evidence that Mr. Montee admitted he started a fire in his late mother’s house, which he stood to inherit. Moreover, the State offered circumstantial evidence showing he intentionally started the fire to collect insurance proceeds. Did the State provide sufficient evidence for a reasonable jury to find Mr. Montee guilty?

Holdings: Mr. Montee’s argument is unpersuasive. The origin of the fire is not a “necessary fact” because it is not one of the elements of the crime of second degree arson. In Mr. Montee’s case, the State was required to prove that on or about the 13th day of February, 2011, in Laramie County, Wyoming, the Defendant, Mr. Montee, started a fire with intent to destroy or damage any property to cause collection of insurance for the loss. It was not required to prove where the fire started. After considering the evidence, the jury might have found that the fire started in the kitchen, in the bedroom closet, or in both places. Wherever the fire originated, the evidence was sufficient for the jury to find that Mr. Montee started the fire with the requisite intent. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2011 WY 131

Summary of Decision September 20, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Shaffer v. WINhealth Partners

Citation: 2011 WY 131

Docket Number: S-11-0005

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464399

Appeal from the District Court of Laramie County, Honorable Thomas T.C. Campbell, Judge

Representing Appellant (Plaintiff): Blair J. Trautwein of Wick & Trautwein, Fort Collins, CO.

Representing Appellee (Defendant): Michael Rosenthal and Lucas Buckley of Hathaway & Kunz, Cheyenne, WY.

Date of Decision: September 20, 2011

Facts: Appellant challenges an order of the district court granting summary judgment in favor of the Appellee. Appellant contends that there are ambiguities in the insurance contract which the district court interpreted incorrectly as a matter of law, and that there are genuine issues of material fact with respect to terminology used in the insurance contract that governs in this case.

Issues: Whether the Exclusions and Limitations provision of the insurance contract is ambiguous as to whether it applies only to cosmetic breast reduction surgeries or all breast reduction surgeries. Whether the term “reduction mammoplasty” has a single plain meaning or two plain meanings. Whether the trial court erred in considering parol evidence in determining the meaning of the contract. Whether the trial court erred in finding the parol evidence affidavit was not disputed by competent evidence. Whether the trial court erred in failing to consider other parts of the contract when determining that reduction mammoplasty was an exclusion applying to all breast reduction surgeries rather than a limitation applying only to cosmetic surgeries. Whether the trial court erred in finding the Exclusions and Limitations provision dealing with complications of operations excluded by the policy applies and denies coverage for Appellant’s penicillin-resistant infection. Whether the court erred in failing to consider the differences in language between two other subparts of the contract when interpreting a third subpart. Whether the contract provided a basis to deny a medically necessary surgery.

Holdings: It is undisputed that Appellant’s breast reduction surgery was medically necessary and was not performed for cosmetic purposes. It is likewise clear that the infection was a complication of her breast reduction surgery. The contract excludes from coverage complications and side effects resulting from surgeries not covered by the policy. The parties disagree as to whether Appellant’s non-cosmetic breast reduction surgery falls within the definition of reduction mammoplasty referred to in the contract.

Reduction mammaplasty is occasionally performed for purely cosmetic purposes. More often, women seek surgical relief from the discomfort caused by massive, heavy, pendulous breasts. The female breast can become large enough to restrict physical activity, interfere with breathing, prevent sleep, and cause constant pain. Operations to relieve such distress are certainly not purely cosmetic surgery. This description of reduction mammoplasty confirms that the term is synonymous with breast reduction surgery and applies whether the procedure is performed for cosmetic or non-cosmetic purposes. Thus, applying the ordinary and common meaning of the words used in the insurance contract Appellant’s breast reduction surgery fell within the definition of “reduction mammoplasty.” Consequently, if the contract simply stated that mammoplasty reduction was “excluded,” all breast reductions are excluded from coverage under the policy. However, the contractual language states that reduction mammoplasty is either “not covered or subject to limitations,” without specifying which of those alternatives applies. The district court did not consider the effect of the “subject to limitations” language. Rules of contract interpretation require effect be given to each word if possible because each provision is presumed to have a purpose. Thus, the contractual language that states that coverage for reduction mammoplasty may be subject to limitations, as opposed to excluded altogether. The only interpretation which gives effect all the various provisions of the contract is that coverage for reduction mammoplasty is not wholly excluded but, rather, coverage is limited to non-cosmetic breast reduction surgeries.

The district court erred in granting summary judgment to Appellee. Appellant is entitled to summary judgment on her claims for the treatment of her infection. This ruling is dispositive and the parties’ other arguments need not be addressed.

The district court’s summary judgment order is reversed, and the district court is directed to enter summary judgment in favor of Appellant on her claims for treatment of her infection. In addition, the matter is remanded to the district court for further proceedings to dispose of all other remaining issues/claims.

J. Hill delivered the opinion for the court.

J. Golden, joined by J. Voigt dissented. In the provision detailing covered services the contract states that all benefits are subject to plan limitations and exclusions and that services that are not specifically identified are not a covered benefit. Thus, medical services for complications arising from medically necessary reduction mammoplasty must be specifically identified in order to be a covered service. One does not find “medical services for complications arising from medically necessary reduction mammoplasty” in the identified covered services. Accordingly, the decision of the district court should be affirmed.

J. Voigt joined by J. Golden dissented. The majority attempts to create insurance coverage for the appellant where none exists. Where the intent of an insurance policy is clear within its four corners, ambiguity is not created by a subsequent disagreement between the parties as to its meaning. Furthermore, one party’s subjective intent or interpretation of a contract is not controlling; instead the objective intent of the language used must be examined. The policy in this case is not ambiguous. The exclusions are not ambiguous. There is nothing to construe or interpret. The action should be affirmed.

Summary 2010 WY 101

Summary of Decision issued July 20, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Sorensen v. State Farm Auto. Ins. Co.

Citation: 2010 WY 101

Docket Number: S-09-0174

Original Proceeding, Petition for Writ of Review, District Court of Natrona County, the Honorable David B. Park, Judge

Representing Sorensen: R. Todd Ingram of Clapp, Ingram & Olheiser, PC, Casper, Wyoming.

Representing State Farm: Billie Ruth Edwards of Edwards & Johnson, LLC, Cheyenne, Wyoming.

Facts/Discussion: Sorensen co-owned a vehicle with Jean Larramendy III. Larramendy Jr. was driving it when he collided with another vehicle being driven by State Farm’s insured. The Sorensen/Larramendy vehicle was uninsured at the time. State Farm filed a complaint against Larramendy III, Larramendy Jr. and Sorensen. State Farm alleged that Sorensen violated Wyoming law by failing to maintain insurance on her vehicle, its insureds sustained damages as a result and it was subrogated to its insureds’ right to recover the damages from Sorensen. The Court was asked to decide whether a party who alleges that he sustained damages in a collision caused by the driver of an uninsured vehicle has, in addition to his cause of action against the negligent driver, a cause of action in tort against the vehicle’s owner for negligently failing to maintain liability insurance.
The duty alleged to have been owed was that of Ms. Sorensen to members of the general public to maintain liability insurance on her vehicle. In order to withstand dismissal of its complaint, State Farm had to establish that: Sorensen was under a duty of care to protect its insureds from being unable to obtain compensation for their damages caused in the collision through an insurance policy covering her vehicle; she breached the duty by failing to maintain liability insurance; State Farm’s insureds suffered the damages alleged and Sorensen’s breach of duty to maintain liability insurance proximately caused the insureds’ damages. Giving the words in the statute their plain and ordinary meaning, § 31-4-103 requires vehicle owners to maintain liability insurance on their vehicles. Nothing in the plain language suggests that in enacting the provision the legislature intended to impose a new tort duty owed by vehicle owners to the general public to maintain insurance.
Before a statute can be said to establish a standard of care, there must be a duty to which the statutory standard of care can be applied. The Court considered whether such a relationship exists between members of the public and a vehicle owner that the law will impose a duty actionable in negligence on the latter to maintain insurance for the protection of the former. The Court considered the Gates factors to determine whether the parties’ relationship in the present case was such that the law ought to impose a duty on Sorensen for the benefit of State Farm’s insureds. The Court concluded it was not foreseeable that Sorensen’s failure to maintain liability insurance would result in State Farm’s insured’s being struck by a negligent driver and being unable to obtain compensation for their damages from him. Next, the Court considered the closeness of any connection between the damage State Farm alleged its insureds sustained and Sorensen’s failure to maintain liability insurance. The property damages to the insured’s vehicle were closely connected with the driver’s failure to exercise reasonable care in operating Sorensen’s vehicle and not with her failure to maintain insurance. The parties do not dispute that the insureds sustained damages to their car in the collision with Sorensen’s vehicle. Serious misconduct may increase the scope of the persons who are entitled to protection afforded by the imposition of a duty. The prevalence of uninsured motorist coverage reduces the chances of damages that may result from lack of insurance. Criminal sanctions are more likely to prevent future harm than a tort duty to maintain liability insurance. Although there may positive consequences from recognizing a tort duty to maintain insurance actionable in negligence, the Court was not convinced they outweighed the negative consequences of imposing tort liability on one individual for the more direct negligence of another. There is insurance available to cover the risk involved. Absent a duty, there is no actionable negligence claim.

Conclusion: The Court’s determination that § 31-4-103 does not give rise to a cause of action in negligence for failure to maintain liability insurance is based primarily on the conclusion that neither the statute nor the common law impose a tort duty on vehicle owners owed to the general public. Because there is no duty, there is no actionable claim for negligence, and a discussion of the issue of proximate cause is not required. Wyoming follows the economic loss rule which bars recovery in tort when a plaintiff claims purely economic damages unaccompanied by physical injury to persons or property. Therefore, as in Hundemer, to the extent the injury State Farm alleged was its insureds’ inability to recover under an insurance policy issued to Sorensen, the injury is purely economic and is prohibited under the economic loss rule.

Reversed.

C.J. Kite delivered the decision.

Link: http://tinyurl.com/2d998zn .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2009 WY 24

Summary of Decision issued February 24, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: State v. Ommen

Citation: 2009 WY 24

Docket Number: S-08-0091

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Appellant State, ex rel., Arnold: Ron Arnold, Cheyenne, Wyoming.

Representing Appellees Ommen and Padilla: Bruce A. Salzburg, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan T. Schelhaas, Senior Assistant Attorney General; Elizabeth B. Lance, Assistant Attorney General.

Facts/Discussion: After her claim for medical benefits under the State Employees’ and Officials’ Group Plan (Group Plan) was denied, Arnold filed a grievance with the Employees’ and Officials’ Group Insurance Program (Group Insurance Program) section of the Wyoming Department of Administration and Information (A&I). The Office of Administrative Hearings (OAH) dismissed the grievance and Ms. Arnold presented the State Office of Risk Management with a notice of claim pursuant to the Wyoming Governmental Claims Act (WGCA) in which she asserted the State breached the insurance contract by failing to pay her claim. The risk manager forwarded the notice of claim to the Group Insurance Program. Arnold then filed a petition for writ of mandamus and complaint for declaratory judgment in district court seeking a writ requiring the risk manager to process her notice of claim and a declaration of her rights under the Group Plan.
Writ of Mandamus: The function of mandamus is to command performance of a ministerial duty which is plainly defined and required by law. The law must not only authorize the demanded action but require it. If the lower tribunal has the right to exercise discretion regarding an issue, mandamus is not an appropriate remedy. The Court reviewed the statutes to determine whether the risk manager had a clear duty to perform a particular act upon receipt of the notice of claim. After careful review of all the relevant statutory provisions, it was clear that Arnold’s notice of claim included claims that fell under the State Self-Insurance Program and the risk manager was required to administer, supervise and manage the investigation, adjustment and settlement of the claim. The risk manager was mistaken in treating it solely as a claim for medical benefits covered by insurance and forwarding it to the Group Insurance Program. Arnold was not entitled to issuance of a writ of mandamus commanding the risk manager to do so. Under the circumstances presented, where the notice of claim sought payments denied under the Group Plan, the risk manager’s duty was not clear and certain. Had the risk manager investigated the claim as required she likely would have denied it on the ground that Arnold had not exhausted the Group Plan appeals process.
Declaratory Judgment: Arnold sought a determination as to whether the Group Plan allowed her to bring a legal action to recover benefits allegedly due without first having completed the Group Plan appeals process. The WGCA required the risk manager to settle or deny her claim rather than forwarding it to the Group Insurance Program. The issues fall within the scope of the Declaratory Judgments Act because they involve interpretation of contractual and statutory rights and duties. They are fit for judicial review. The Court concluded that hardship would result from a denial of judicial review. Because there was more at issue than an abstract disagreement about what Arnold and the risk manager could and could not do with respect to the Group Plan and the WGCA, a judicial determination was appropriate.
Legal Actions: The Group Plan stated that medical management would review the medical necessity of services that have already been provided. If medical management determines the services were not medically necessary, the insured can appeal the decision. The Group Plan provides two levels of appeal: an internal review by a board certified physician reviewer and an external review conducted by a doctor or group of doctors. Arnold requested a determination that the services were medically necessary. Great-West’s physician reviewer denied the request because there was insufficient documentation. Arnold did not submit additional documentation nor did she appeal, instead she filed a grievance.
The appeal procedures applicable to medical necessity determinations set forth in the Group Plan are clear and unambiguous. Arnold had the opportunity to submit additional information and did not. She was also required to complete two levels of appeal before bringing a civil action and she did not. Arnold asserted that the Group Plan was ambiguous because while the medical management provision requires an insured to appeal, the Legal Actions provision contained no such requirement. Where the insurer expressly informed the insured that documentation was insufficient and the insured did not respond, the Court could not conclude that the proof of loss requirement for bringing a legal action was satisfied. Arnold did not exhaust the Great-West appeals process before filing her grievance, therefore, the issue of whether a preponderance of the evidence supported Great-West’s determination was never addressed and the OAH did not have the opportunity to disregard or accept Great-West’s determination.

Conclusion: The State Self-Insurance Program requires the risk manager to initiate and oversee the investigation, adjustment, and settlement of claims brought against the state and its employees under the WGCA. Under the circumstances of this case where the claim involved the payment of medical benefits under the state employee’s group insurance plan, the risk manager’s duty was not so clear as to make issuance of a writ of mandamus appropriate.
Arnold was entitled to a declaration of her rights under the Group Plan. Pursuant to the medical management provisions, she did not have the right to bring a legal action to recover under the Group Plan until she completed the required two level appeals process. The Court affirmed the district court’s order denying Arnold’s petition for writ of mandamus and reversed the district court’s order denying her complaint for declaratory judgment.

Affirmed in part and reversed in part.

J. Kite delivered the decision.

Link: http://tinyurl.com/d4gefu .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 86

Summary of Decision issued July 22, 2008

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Pinker v. State

Citation: 2008 WY 86

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=452058

Docket Number: S-07-0187

Appeal from the District Court of Laramie County, Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; and Tina N. Kerin, Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General.

Date of Decision: July 22, 2008

Facts: Appellant entered a plea of guilty to a violation of Wyo. Stat. § 6-2-502(a)(i) (LexisNexis 2007) in that he inflicted injuries on his two-month-old daughter which caused her serious, permanent, and disabling injuries. He was sentenced to be imprisoned for six to eight years. In addition, he was also ordered to complete restitution to the Office of Healthcare Financing (OHCF), care of ACS Third Party Liability for the amount of Medicaid benefits that had been paid on behalf of his daughter as of the date the presentence report was completed. The presentence report also provided the court with verification that OHCF was subrogated to the rights of his daughter with respect to any claim that ... she may have arising from the accident or incident and this subrogation extends to all Medicaid funds paid or to be paid on account of her injuries, and OHCF must be reimbursed for those amounts.

Issues: Whether the district court's oral pronouncement of restitution was controlling and an illegal sentence. Whether the district court exceeded its statutory authority in awarding restitution to the Office of Healthcare Financing, as that entity is not a "victim" as defined by statute.

Holdings: The essence of Appellant's argument is that the district court's oral sentence effectively awarded an uncertain and unspecified amount of restitution, not to exceed $200,000.00, and did not name the victim. His claim is that both of these matters are required to be made definite in the oral sentence and, having failed to comply with the statute, the sentence is illegal. However, under the circumstances presented here, the plea agreement clearly informed Appellant that he would be required to pay restitution for the treatment provided to his daughter. The district court mistakenly believed that it could order Appellant to be required to pay restitution in an amount "to be determined." However, that mistaken belief was corrected prior to entry of the written sentence. The evidence of record fully supported the district court's initial oral findings and that can easily be followed through to the written sentence. Under these circumstances, Appellant's contention that the oral sentence conflicts with the written sentence must be rejected, and any suggestion that the oral sentence was illegal is also rejected. There is no real ambiguity in the trial court's sentences, both oral and written and there is no real discrepancy or conflict between them. It should also be noted that Appellant did not make objections to the restitution award either at the sentencing hearing or after the written sentence was entered of record.

Appellant contends that the Office of Healthcare Financing (OCHF) is not a victim as defined by the governing statute and, hence, the district court exceeded its statutory authority in ordering that it be paid restitution. A part of the plea agreement in force in this case made it clear that Appellant would be paying restitution to the victim or victims of his crime. That, of course, was aimed directly and primarily at the costs of caring for and maintaining his daughter. "Victim" is defined by statute: "'Victim' means a person who has suffered pecuniary damage as a result of a defendant's criminal activities. Under Wyo. Stat. 7-9-101(a) (v) (2007), an insurer which paid any part of a victim's pecuniary damages shall be regarded as the victim only if the insurer has no right of subrogation and the insured has no duty to pay the proceeds of restitution to the insurer." However, the restitution statute does not define "insurer." In this case, Medicaid paid the enormous medical bills generated by the treatment for the injuries inflicted by Appellant on his daughter. Wyo. Stat. 42-4-201 through 42-4-206 (2007) detail the State of Wyoming's right to recover, by way of subrogation, benefits paid for Medicaid services under circumstances like those presented in this case. Looking to the logical source for a definition, the Wyoming Insurance Code which defines "insurer" as "any person engaged as indemnitor, surety or contractor in the business of entering into contracts of insurance or annuity" and defines insurance as a contract. Wyo. Stat. 26-1-102(a)(xvi), (xv). OHCF is not in the business of entering into contracts of insurance or annuity and does not enter into contracts for insurance. The Insurance Code does not purport to govern the Medicare system. Further, OCHF was required to pay the medical expenses which resulted from Appellant's assault. Therefore, OCHF is not an insurer for purposes of the restitution statute, and the trial court's order is affirmed.

The judgment and sentence of the district court are affirmed.

J. Hill delivered the opinion for the court.

Summary 2008 WY 31

Summary of Decision issued March 20, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Haines v. Old Rep. Nat’l Title Ins. Co.

Citation: 2008 WY 31

Docket Number: 06-147

Appeal from the District Court of Natrona County, the Honorable Gary P. Hartman, Judge

Representing Appellant (Plaintiff): Gibson Sean Benham, Casper, Wyoming.

Representing Appellee (Defendant): Keith R. Nachbar of Keith R. Nachbar, PC, Casper, Wyoming.

Facts/Discussion: Haines asked the Court to decide for the first time whether a title insurance policy that insures legal access requires the insurer to affirmatively obtain a recorded easement or right of access or compensate the insured for the lack of recorded access rights. The trial court granted summary judgment to Old Republic holding that Haines was not entitled to either remedy because she had access to her property and had suffered no loss entitling her to compensation under the policy.
Haines contended that as a matter of law, an insurer’s failure to remedy a title defect or compensate for the insured’s having to establish the right of access under these circumstances breaches the title insurance policy. The Court found in the instant case that the insurer had adequately established that the alleged marketability or other title problems did not really exist and thus Haines could not suffer any loss or damages, and the Court affirmed the grant of summary judgment.

Holding: Haines had two other methods of access and presented no evidence that these were not legally enforceable. Only defects shown in the public record relating to a legal right of access are covered under the policy.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2rqbdx .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 96

Summary of Decision issued June 15, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: McMurry Construction Co. v. Community First Ins., Inc., BW Insurance Agency, Inc., and Ohio Casualty Ins. Co.

Citation: 2007 WY 96

Docket Number: 06-271

Appeal from the District Court of Natrona County, the Honorable John C. Brooks, Judge

Representing Appellant (Plaintiff): W.W. Reeves of Park Street Law Office, Casper, Wyoming.

Representing Appellee BW Ins. Agency, Inc.: Richard A. Mincer and Billie L.M. Addleman of Hirst & Applegate, PC, Cheyenne, Wyoming. Argument by Mr. Mincer.

Representing Appellee Ohio Casualty Ins. Co.: Patrick J. Murphy and Ryan Schwartz of Williams, Porter, Day & Neville, PC, Casper, Wyoming. Argument by Mr. Murphy.

Issues: Whether the builder’s risk policy claims, including reformation, were barred by the construction company’s failure to read the insurance documents or by its failure to mitigate damages. Whether the district court erred in denying the construction company’s motion to amend its complaint.

Facts/Discussion: McMurry appealed from summary judgments granted to an insurance agency and an insurance company in a controversy primarily involving a builder’s risk insurance policy. McMurry appeals from the district court’s denial of its motion to amend its complaint.

Standard of Review: When the Court reviews a summary judgment, they have before them the same materials as the district court had and they follow the same standards which applied to the proceedings below. In the present case, BW Ins. and Ohio Casualty both admitted negligence and breach of contract which left a purely legal issue for the Court to review de novo.
The issue was whether McMurry’s claims were barred by its failure to read the builder’s risk policy documents or its failure to mitigate damages. The Court’s analysis focused on whether the equitable doctrine of reformation survived in the face of a clear violation of the failure-to-read rule and the failure to mitigate damages.
The Court espouses the principle that an insured has a duty to read his or her insurance policy. The federal courts have also interpreted Wyoming law as imposing upon an insured the duty to read his or her policy.
The Court conjectured that BW and Ohio admitted negligence and breach of contract for purposes of their summary judgment motions under the assumption that failure to read the policy and failure to mitigate damages protected them from liability. McMurry countered that in none of the cases cited did those defenses triumph in the face of a properly pled and proven cause of action for reformation of contract. Reformation is dependent upon an agreement having been reached and that the agreement had been correctly recited in the subsequently written instrument.
The Court stated the question it was being asked to consider was whether McMurry could seek reformation, given its failure to read the policy. Cordero Mining Co. v. United States Fidelity & Guarantee Insurance Co. was the only one of the cases cited in which the reformation of contract was actually raised as a claim in the complaint. The Court summarized that even after Cordero, they have only gone so far as to say that the defenses of failure to read and failure to mitigate barred a plaintiff’s legal contract and tort claims. The Court noted that the courts of the country are split over the separate question of the availability of the equitable doctrine of reformation where an insured has failed to read an insurance policy. The Court stated they were convinced the majority view was correct – where effectuation of an antecedent agreement is thwarted by mutual mistake in reducing that agreement to writing, justice is not served by judicial enforcement of the mistaken writing, rather than the intended agreement, just because one of the parties did not read the writing. The Court concluded that failure to read and failure to mitigate should not and do not bar the remedy of contract reformation.
Motion to Amend Complaint: The district court separated the new allegations of the proposed amended complaint into three categories and denied amendment for a different reason as to each category. The district court presented a reasonable basis for each decision, based upon objective criteria. The complaint was filed in November, 2005 and the motion hearing was in August, 2006. It was not unreasonable for the district court to deny amendment of a complaint to add new issues to a ten-month-old case.

Holding: The district court appropriately granted summary judgment to BW Insurance and Ohio Casualty on the tort and contract causes of action contained in McMurry’s complaint because those causes of action were barred by McMurry’s failure to read the insurance policy documents sent to it. Summary judgment was not appropriate on the equitable doctrine of reformation, which remained viable under the majority rule, which the Court adopted. The summary judgments were reversed to that extent and the matter was remanded to the district court for further proceedings. The district court did not abuse its discretion in denying McMurry’s motion to amend its complaint and that denial is affirmed.

Affirmed in part and reversed and remanded in part.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yu4v2e .