Summary 2006 WY 57

Summary of Decision issued May 11, 2006

[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 for assistance.]

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

Case Name: Cantrell v. Sweetwater County School District No. 2

Citation: 2006 WY 57

Docket Number: 05-215

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Appellants (Plaintiffs): Richard Honaker of Honaker Law Offices, LC, Rock Springs, Wyoming.

Representing Appellee (Defendant): Ford T. Bussart and William B. Payne of Bussart, West & Tyler, PC, Rock Springs, Wyoming. Argument by Mr. Bussart.

Date of Decision: May 11, 2006

Issue: Whether a verified affidavit, signed under oath by the claimants, satisfies the requirement of Article 16, § 7 of the Wyoming Constitution that claims against governmental entities be “certified to under the penalty of perjury”.

Holding: The parents of a now-ten-year-old boy appeal from the district court’s dismissal of their complaint against a school district alleging injuries suffered by the boy on school property for lack of subject matter jurisdiction. The district court concluded that the procedure of a signed notarized affidavit without the language of “certified to under penalty of perjury” did not give them subject matter jurisdiction in the case. Subject matter jurisdiction and the district court’s interpretation and application of the Wyoming Constitution are questions of law that are reviewed de novo. In construing constitutional provisions, the Court follows the same rules that govern the construction of statutes and are guided by the intent of the drafters. The Court has repeatedly held that Article 16, § 7 applies to claims presented under the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101 and that the district court does not have subject matter jurisdiction in the case of a governmental claim that does not meet constitutional requirements. In giving meaning to statutes and constitutional provisions, the Court endeavors to find the reasonable intent of the drafters. If it is acceptable to state that the facts supporting a claim are true, it certainly must be acceptable to swear that those facts are true. The Court concluded that if a governmental claim is supported only by certificate, that certificate must be accompanied by the words “under penalty of perjury” but that a claim may be supported by verified affidavit without inclusion of those words. Compliance exceeding the constitutional language was sufficient.

The Court reversed and remanded.

J. Voigt delivered the opinion for the court.

Link to the case: http://tinyurl.com/l8tma .

Summary 2006 WY 56

Summary of Decision issued May 10, 2006

[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 for assistance.]

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

Case Name: Lawrence v. State Farm Fire and Casualty Co.

Citation: 2006 WY 56

Docket Number: 05-191

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

Representing Appellant (Plaintiff): Michael C. Steel of Lonabaugh and Riggs, LLP, Sheridan, Wyoming.

Representing Appellee (Defendant): George E. Powers Jr., of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming.

Date of Decision: May 10, 2006

Issue: Whether State Farm breached the subject insurance policy by refusing to defend its insured, Valerie Johnson, against the negligence claim alleged in the underlying action.

Holding: Appellant is the mother and personal representative of Cody Lee Holt who died from injuries suffered in a one-car crash that occurred south of Billings, Montana on July 4, 2003. Valerie Johnson owned the car that was involved in the accident. She gave money for gas to her daughter, D’Andra Amende. There were four teenagers involved in the incident and none held a valid driver’s license. The insurance company which covered the car as well as the insurance company that covered the driver, settled claims filed by Lawrence on behalf of her son’s estate. Lawrence filed an additional claim against Johnson giving notice to State Farm on the theory that Johnson’s act of giving gas money to her daughter was the negligent act that ultimately led to Holt’s death. State Farm informed Lawrence’s attorney that it would not participate in the mediation conference because the policy did not provide coverage for the accident. Johnson and Amende entered into a settlement agreement with Lawrence resolving Lawrence’s wrongful death claims against them. The parties entered into an Assignment of Rights and Claims in which Johnson and Amende confessed judgment in favor of Lawrence in an aggregate amount of $750,000 and Lawrence agreed to not execute on those judgments except against State Farm. The district court entered a partial summary judgment in favor of State Farm and denied Lawrence’s motion for partial summary judgment.
When the Court reviews a summary judgment, they review the same materials as did the district court and follow the same standards which applied to the proceedings below. The propriety of granting a motion for summary judgment depends upon the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. In Matlack, the Court stated that the insurer is obligated to afford a defense as long as the alleged claim rationally falls within the policy coverage. The Court reviewed the language of the policy in question. Next, they examined the complaint to ascertain if any claim alleged was potentially covered under the policy. The Court stated that the negligent act, if any, was Johnson giving her daughter gas money so that she could operate the motor vehicle in question. Hence, Johnson’s acts were inextricably related to the operation of the motor vehicle and within an exception to the insurance coverage at issue. Neither the Court nor the Appellant could cite a case that could be viewed as pertinent authority that supported Appellant’s argument. At oral argument, Appellant cited Oliver and Sarp but the court was not persuaded that they supported Appellant’s position because the use of the car was an essential element in the theory of liability.

The Court held that the district court did not err in granting summary judgment in favor of State Farm. The Court affirmed.

C.J. Hill delivered the opinion for the court.

Link to the case: http://tinyurl.com/mfmn8 .

Summary 2006 WY 55

Summary of Decision issued May 4, 2006

[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. 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 for assistance.]

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

Case Name: Wyoming Downs Rodeo Events, LLC and Wyoming Horseracing Inc. v. State; and Jon R. Forwood, District Attorney, First Judicial District, State of Wyoming

Citation: 2006 WY 55

Docket Number: 05-201

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

Representing Appellants (Plaintiffs): Bruce A. Salzburg of Freudenthal, Salzburg & Bonds, PC, Cheyenne, Wyoming.

Representing Appellees (Defendants): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Senior Assistant Attorney General. Argument by Mr. Armitage.

Date of Decision: May 4, 2006

Issue: Whether “Instant Racing” electronic gambling devices are expressly authorized by Wyoming statutes. Whether “Instant Racing” electronic gambling devices are prohibited by Wyoming law.

Holding: Wyoming Downs filed an action for declaratory judgment, seeking the court’s declaration that Instant Racing is lawful in Wyoming. Wyoming Downs sought a preliminary injunction and a permanent injunction. The district court denied injunctive relief in both instances. Wyoming statutes provide that both “gambling” and “professional gambling” are crimes. Wyo. Stat. Ann. § 6-7-102. Gambling is defined by Wyo. Stat. Ann. § 6-7-101(a)(iii) and “gambling device” is defined by Wyo. Stat. Ann. § 6-7-101(a)(iv). “Professional gambling” is defined by Wyo. Stat. Ann. § 6-7-101(viii). The Court reviewed the district court’s record and their findings and followed the same standards which applied to the proceedings. Granting a motion for summary judgment depends on the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. The Court reviews the record from the vantage point most favorable to the party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record. Questions of law are reviewed de novo. Based upon the same reasoning that the Court employed in the Fraternal Order of Eagles case, they concluded that the district court correctly construed and applied the applicable statutes and that it did not err as a matter of law in applying the statutes as it did. The description of the Instant Racing gaming device found in the patent documents makes it unmistakable that it is a “gambling device” as defined by Wyoming law. The description provided by the Wyoming Down’s affidavit and the photographs depicting the gaming device which were put into evidence, corroborate the inescapable conclusion that the terminals were gambling devices that the Wyoming State Pari-mutuel Commission could not authorize via the statutory powers granted to it. An agency may not rewrite a statute through its rulemaking power.

The Court affirmed.

C.J. Hill delivered the opinion for the court.

Link to the case: http://tinyurl.com/q7b4q .

Summary 2006 WY 54

Summary of Decision issued May 4, 2006

[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. 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 for assistance.]

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

Case Name: In the Matter of Worker’s Compensation Claim of Bobby Joe Pickens: State, ex rel, Workers’ Safety and Compensation Division v. Pickens

Citation: 2006 WY 54

Docket Number: 05-162

Appeal from the District Court of Big Horn County, the Honorable H. Hunter Patrick, Judge.

Representing Appellant (Respondent): Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Kristi M. Radosevich, Assistant Attorney General.

Representing Appellee (Petitioner): Edward G. Luhm of Scott, Shelledy and Luhm, PC, Worland, Wyoming.

Date of Decision: May 4, 2006

Issue: Whether the Medical Commission erred when it found that the claimant did not qualify for permanent total disability benefits under the odd lot doctrine.

Holding: In September 1990, claimant was injured at work when a loader he was operating slid down a ramp and collided with a pile of material at the base of the ramp. He did not report the injury to the Division. In September 1991, claimant was injured when another employee struck him from behind hard enough “to be knocked off balance”. This injury was reported. He was assigned a 9% permanent whole body impairment based on loss of motion as well as a 36% loss of earnings award. From 1992 until claimant filed the instant claim, he was examined by a variety of doctors and rehab specialists who attributed his symptoms to various disorders. The claimant’s application for permanent total disability was denied by the Division on July 3, 2002. Claimant later argued before the Commission that he qualified for permanent total disability under the odd lot doctrine and was denied.
The Court reviews administrative action as if the appeal had come directly from the administrative agency. The claimant in a workers’ compensation case bears the burden of proving each element of the claim by a preponderance of the evidence. When both parties admit evidence, the Court applies the substantial evidence test. Further, the Court applies the arbitrary and capricious standard of review as a “safety net” to catch agency actions that violate the Wyoming Administrative Procedures Act. Conclusions of law are reviewed de novo.
Under the odd lot doctrine, a claimant who is not actually permanently totally disabled is able to receive permanent total disability benefits because the claimant’s disability and other factors make the claimant de facto unemployable. The doctrine shifts the burden such that the claimant is required to make a prima facie showing that (1) he is no longer capable of working at the job in which he was employed at the time of the injury and (2) the degree of obvious physical impairment, coupled with other facts, such as mental capacity, education, training or age qualify him for odd lot treatment. The Court had to determine whether substantial evidence supported the Commission’s finding that subsequent injuries, medical and mental conditions caused the claimant’s inability to work or whether his current disability is work-related. Then, considering those facts, the question is whether the claimant is eligible for odd lot treatment as a matter of law. The Court reviewed the record and found that the Commission’s findings of fact were supported by substantial evidence. The Court agreed with the Division that the Commission correctly applied the odd lot doctrine and the district court erred in reversing the Commission’s denial of benefits. The district court combined the claimant’s two burdens and found that the claimant had proven he was unable to perform his previous employment through his original workplace injury and his unrelated other injuries and medical conditions. The Court stated this was error. The Court noted that adopting the district court’s reasoning would impermissibly expand permanent total disability benefit awards under the Worker’s Compensation Act. In the context of the odd lot doctrine, a causal connection must exist between the compensable workplace injury and the claimant’s inability to work at the job in which he was employed at the time of injury. The Commission found that the claimant’s current inability to work in his previous employment is a consequence of non-work-related injuries and ailments. Because the claimant failed to meet his initial burden of proving that his work-related injury disabled him from continuing in his previous employment, his claim for benefits under the odd lot doctrine was properly denied by the Commission. The claimant failed to prove his work-related injury barred him from working in his previous employment. As a result, the Commission correctly found that he was not eligible for permanent total disability benefits under the odd lots doctrine and the district court’s reversal of the Commission was error.

The Court reversed and reinstated the Order of the Commission denying benefits.

J. Voigt delivered the opinion for the court.

Link to the case: http://tinyurl.com/nvzp9 .

Summary 2006 WY 53

Summary of Decision issued May 3, 2006

[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. 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 and we will provide assistance.]

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

Case Name: Board of Professional Responsibility, WY State Bar v. Timothy John Blatt

Citation: 2006 WY 53

Docket Number: D-06-1

Order Suspending Attorney From the Practice of Law

The matter came before the Court upon a “Report and Recommendation for Reciprocal Discipline,” filed on February 3, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. After a careful review of the record the Court found that the Report and Recommendation for Reciprocal Discipline should be approved, confirmed and adopted by the Court; and that the Respondent Timothy John Blatt should be suspended from the practice of law for a period of thirty (30) days.

C.J. Hill.

Link to the order: http://tinyurl.com/jv7sl .

The full record with attachments will be available in the database at a later date.

Legislative Histories Online

Rick McKinney, Assistant Law Librarian for the Federal Reserve Board Law Library announced last week that the Law Librarians' Society of Washington, DC, Inc. has made available a new site on its Legislative Source Book entitled "Legislative Histories of Selected U.S. Laws in Electronic Format"(http://www.llsdc.org/sourcebook/leg-hist.htm). The selected laws are organized in alphabetical and public law number order and primarily come from (and are linked to) the Department of Commerce (DoC) Law Library online catalog (pin is any characters you choose). The site also contains many explanatory notes while each law contains links to related bill information on the Library of Congress (LoC) THOMAS site, to a current related U.S. Code site, and to a current related C.F.R. site. The public law legislative histories include Antidumping Act of 1921, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, theCopyright Law Revision of 1976, the Export Administration acts of 1965,1972 and 1979, the Government in the Sunshine Act of 1976, and other laws. In the future it is hoped that other agencies and firms will add to this collection.

Passwords

It's Monday morning and you've barely managed to type in your network password while trying to wake up with hot coffee that just burned your tongue. And when you think you've managed to not mispell the password (the imaginative password of "princess5" in honor of your bulldog), a window pops up telling you that it's time again to change your password. You dutifully type in "princess6" and try to get on with your Monday.

According to David Utter of SecurityProNews.com, the days of needing to change passwords frequently should be over. In his article, Password Change Myth Discounted (http://www.securitypronews.com/insiderreports/insider/spn-49-20060424PasswordChangeMythDiscounted.html), he states that it's better policy now to create one secure password (i.e., not your high school nickname) and stick with it.

So, armed with this suggestion, here is a article from Sarah Scalet at CSOonline.com on how to create that unguessable password (or code) and still be able to remember it: http://csoonline.com/read/120105/ht_passwords.html. It may take a little more thought now, but just think how much more secure personalized gibberish is than "princess5."