William G. AWE, by Ralph W. Awe, his father and next friend, et al., Appellants (Plaintiffs below), v. UNIVERSITY OF WYOMING et al., Appellees (Defendants below).
No. 4379.
Supreme Court of Wyoming.
March 17, 1975.
Rehearing Denied April 23, 1975.
534 P.2d 97
George F. Guy and Ward A. White, of Guy, Williams & White, Cheyenne, for appellees.
Before GUTHRIE, C. J., and RAPER and THOMAS, JJ.
RAPER, Justice.
One of the plaintiffs-appellants, a four-year-old child, on July 16, 1970, fell out of a window on the fourth story of a University of Wyoming dormitory. Needless to say, severe injuries were sustained. He was occupying a room with his parents, the other plaintiffs-appellants, while they attended an institute at the university. His parents brought this suit for damages on his and their behalf, against the University of Wyoming and its trustees, defendants-appellees, charging negligence of various sorts. There are other defendants, but they are not parties to this appeal.
There is only one primary question, though because of appellants’ Gatling gun approach we must touch others of a secondary nature. Before filing suit, was it necessary to first file a claim with the auditor of the State of Wyoming, pursuant to
“Persons having claims against the state shall exhibit the same, with the evidence in support thereof, to the auditor, to be audited, settled and allowed, within one year after such claim shall accrue, and not afterward.”
No sworn or certified claim of any sort was ever filed with the state auditor, nor has any similar claim been filed with the appropriate officer of the University of Wyoming before initiating a lawsuit. The only claims ever made have been by lawsuits against the university and its trustees, though plaintiffs argue that various actions by plaintiffs and their representatives con
Ten years following the decision of the Supreme Court of Wyoming in Hjorth Royalty Co. v. Trustees of University of Wyoming, 30 Wyo. 309, 222 P. 9 (1924), a 1923 case, wherein was affirmed a sustained demurrer and a holding that a quiet title action against the trustees of the University of Wyoming was a suit against the State, the legislature enacted
“Any action permitted by law, which shall be brought against Wyoming farm loan board, board of land commissioners, state board of charities and reform, public service commission of Wyoming, state board of equalization of Wyoming, or the trustees of the University of Wyoming is hereby declared to be an action against the State of Wyoming and hereafter no action shall be brought against any of such boards, commissions or trustees except in the courts of the State of Wyoming and no action shall be maintained against any of such boards, commissions or trustees in any other jurisdiction.”
The plaintiffs believe that the filing of a formal claim before suit is unnecessary in the light of all that has been done to call attention to their claim, in assorted ways:
- University personnel investigated the occurrence when the little boy fell.
- Correspondence requesting information was written to university officials.
- The case was filed in federal court, in which service of summons was made on the financial vice president of the University of Wyoming and an answer was filed.
- Attorneys for defendant-university took the depositions of plaintiffs-parents.
- The case was filed in the Laramie County district court and service has been made on a secretary in the office of the University of Wyoming president.
- This is really a suit against the liability insurance carrier of the university. Therefore, the State and university are out of it; no state money will be disbursed; the insurance company has all the notice it needs of plaintiffs’ claim and has been investigating and defending itself from the time the federal case was started.
It is the position of the plaintiffs that as a practical matter all these various acts on their part serve as a substitute for the statutory requirement.
We hold that none of the actions taken by plaintiffs constitute the form of claim contemplated by
Section 9-71 implements
“No money shall be paid out of the state treasury except upon appropriation by law and on warrant drawn by the proper officer, and no bills, claims, accounts or demands against the state, or any county or political sub-division, shall be audited, allowed or paid until a full itemized statement in writing, verified by affidavit, shall be filed with the officer or officers whose duty it may be to audit the same.”1
In Utah Construction the court very simply disposed of the problem by stating that the statute, now
The appellants contend that the facts of the case now before the court do not fall within
The plaintiffs want us to speculate that when the legislature said that there would be a claim filed with the proper officer, there was some sort of an exception written into
The tort case of Price v. State Highway Commission, 1946, 62 Wyo. 385, 396, 167 P.2d 309, 312, re-affirmed the proposition that a plaintiff‘s complaint is defective in its failure to allege presentation of his claim to the state auditor, as required by law, and a demurrer was properly sustained. We now have the Wyoming Rules of Civil Procedure and the pleading is attacked by a motion to dismiss for failure to state a claim rather than by demurrer. The district court sustained such a motion in the instant case. The plaintiffs attempted to evasively plead filing of a proper claim, but admissions and documents in the file show to the contrary.3
The plaintiffs seem to feel that the insurance company is the only one having any interest in their claim; in this, they are mistaken. There are other considerations which combine to establish that the filing of a claim requirement bears a rational relationship to a legitimate government interest.4
There is another equally important reason why the interest of the State as a party cannot be ignored. As noted in Collins v. Memorial Hospital of Sheridan County, Wyo.1974, 521 P.2d 1339, 1344, we have no “direct action statute.” An insurance liability by virtue of the policy must be predicated upon a recovery against the insured and because of the failure of the appellant to comply with the condition precedent before this suit, it cannot be maintained.
The plaintiffs seem to find some magic in the use by the legislature of the term “body corporate” in referring to the board of trustees of the University of Wyoming (
The board of trustees of the University of Wyoming and the Wyoming highway commission have only such au
This same observation was made by the court in Williams v. Eaton, C.A.10, 1971, 443 F.2d 422, n. 5, p. 427, on remand D.C., 333 F.Supp. 107, aff. 468 F.2d 1079, where, after stating that the board of trustees of the University of Wyoming is constituted a body corporate and given numerous powers pursuant to
It is our further view that since
Plaintiffs argue that
In the face of well-established law in Wyoming that the filing of such a claim under
This court ought to be consistent in its reasoning and afford some stability to its precedents, though it must be cautiously responsive to modern trends, when backed by sound and tested reason. We must avoid back-lash into other areas. For example, if we were to eliminate the requirement of the timely claim as a condition precedent, in the face of insurance, it would probably also knock out the case of Lo Sasso v. Braun, supra, where many of the same arguments made by plaintiffs here were made in that case, involving the estate of a decedent. The plaintiff there failed to file a claim in the estate within the time allowed for filing claims. Plaintiffs took the position that since there was liability insurance, there was no necessity to file a claim, because none of the assets of the decedent‘s estate were at stake. We are not so much interested in the fact that there may be some distinctions between a claim against a decedent‘s estate and a claim against the State of Wyoming, as we are in the reasoning of the court, which calls forthright attention to the fact that courts cannot supply omissions in a statute and will not read into a statute exceptions not made by the legislature and if such provisions seem harsh, redress should be made to the legislature and not to the courts, it not being the duty of a court to make laws, but it is our duty to construe and enforce the laws enacted by the legislature. In 1971, this court saw fit to follow Lo Sasso. In re Estate of Baker, Wyo.1971, 483 P.2d 513, reh. den. 484 P.2d 1175. The practicing bar and the district courts have depended upon this concept and it has become settled.
We can find no reason to here upset precedent. The advance filing of claims serves valuable purposes, as before outlined in this opinion. In this same vein, we should look at the experience in other states.
The supreme court of California abrogated government immunity in Muskopf v. Corning Hospital District, 1961, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, with respect to a hospital district. The same court in Dias v. Eden Township Hospital District, 1962, 57 Cal.2d 502, 503, 504, 20 Cal.Rptr. 630, 631, 370 P.2d 334, 335, decided that there is no merit to the argument that the abrogation of immunity eliminated the requirement for presentation of claims as a condition to the maintenance of actions against public entities and stated that,
“* * * The principal purpose of such statutes is to give a public entity timely notice of the nature of claims against it so that it may investigate and settle those of merit without litigation. [Citing case.] To the extent that immunity is abrogated the importance of these considerations is increased.
“Likewise without merit is the contention that, since it is not necessary to file a claim before maintaining an action against a private nonprofit corporation operating a hospital for the use of the public, the statutory requirement that a claim must be filed before bringing an action against a hospital district constitutes an arbitrary and unreasonable dis
crimination. Public agencies, generally speaking, afford a proper subject for legislative classification.”
In a later case, the supreme court of California continued on this same line. Tammen v. County of San Diego, 1967, 66 Cal.2d 468, 480, 58 Cal.Rptr. 249, 426 P.2d 753. It is indicated in Whitfield v. Roth, 1974, 10 Cal.3d 874, n. 20, 112 Cal.Rptr. 540, n. 20, 519 P.2d 588, n. 20, that the rule is still being followed and there is no successful constitutional attack that has been made.
In Lunday v. Vogelmann, Iowa 1973, 213 N.W.2d 904, 907, the plaintiff argued that the requirement of filing a claim prior to suit denied him of equal protection because it unreasonably puts victims of governmental torts in a different class than victims of private torts, the same as argued by plaintiffs here, in that tort claims against governmental subdivisions are subject to the special notice requirement, whereas tort claims against private persons are not. The court, after a considerable discussion of the constitutional standards of classification, decided that such a claim requirement does bear a rational relationship to a legitimate government interest, and explained,
“The fundamental motivation attributed to legislatures which have enacted such notice requirements is that where a governmental subdivision is involved the public has an interest it does not have as to claims against private persons in seeing prompt and thorough investigation of claims is made. This protects the public treasury from stale claims. [Citing case.] It permits prompt settlement of meritorious claims and facilitates planning of municipal budgets. [Citing case.] The notice requirement also ensures that notices reach the public officers with responsibility to deal with them and in many instances should enable such officers to remedy defects in far-flung municipal property before other persons are injured.”
We accept the views of California and Iowa in Dias v. Eden, supra, and Lunday v. Vogelmann, supra, respectively.6 We recognize Michigan in Reich v. State Highway Department, 1972, 386 Mich. 617, 194 N.W.2d 700, and Grubaugh v. City of St. Johns, 1970, 384 Mich. 165, 180 N.W.2d 778, as well as Nevada in Turner v. Staggs, 1973, 89 Nev. 230, 510 P.2d 879, cited by plaintiffs, as contra but consider them foreign to the concept we prefer. To do otherwise would have us ignore the Constitution of the State of Wyoming, the statutes of the state, and the substantial case law of this court.
None of those cases, even the ones we favor, meet the Wyoming situation head on. In Dias, there is a statutory waiver of immunity and insurance was not a subject of the decision. The same is true of Lunday, Reich and Grubaugh. Illinois has gone both ways under a statute abrogating immunity. If no insurance, claim notice required. King v. Johnson, 1970, 47 Ill.2d 247, 265 N.E.2d 874. If optional authorized insurance, no claim notice required. Housewright v. City of LaHarpe, 1972, 51 Ill.2d 357, 282 N.E.2d 437. One thing in common with all the cited cases is that they involve local political subdivisions, not the vast problem of a total state government. We have borrowed their ideas and reasoning, where fitting.
We must meet another assault made by plaintiffs upon
“If a person entitled to bring any action mentioned in this article, except for a penalty or forfeiture, is, at the time the cause of action accrues, within the age of twenty-one years, insane or imprisoned, such person may bring such action
within three years after such disability is removed; provided, nothing herein shall be construed as requiring a person formerly under disability to bring any action within any shorter period than is extended to persons not under disability.”
In other words, plaintiff, a minor, four years of age at the time of the accident, claims he has until age 24 to file a claim with the auditor—year 1990. In spite of this bizarre view, we shall discuss it, anyway.
“It is competent for the legislature to put infants and adults upon the same footing with respect to a limitation law, and this is the effect of a statute containing no savings clause exempting infants. Thus, minority does not per se bestow immunity upon an infant or his guardian without a legislative saving in his favor, and a statute of limitations will ordinarily run against the claims of infants in the absence of a contrary statute or provision.” 51 Am.Jur.2d (Limitation of Actions) § 182, p. 750.
That rule is supported by the following cases: Gasparro v. Horner, Fla.App.1971, 245 So.2d 901; Lametta v. Connecticut Light & Power Co., 1952, 139 Conn. 218, 222-223, 92 A.2d 731, 733; Barbour v. Williams, 1944, 196 Miss. 409, 416, 17 So.2d 604, 606.
“While most courts give recognition to certain implied exceptions arising from necessity, it is now conceded that they will not, as a general rule, read into statutes of limitation an exception which has not been embodied therein, however reasonable such exception may seem and even though the exception would be an equitable one. The modern rule of construction in this respect is that unless some ground can be found in the statute for restraining or enlarging the meaning of its general words, it must receive a general construction, and the courts cannot arbitrarily subtract therefrom or add thereto. Undoubtedly, a hardship will result in many cases under this rule, but the court may construe only the clear words of the statute, and if its scope is to be enlarged, the remedy should be legislative rather than judicial. * * *”
The plaintiffs have indicated that they have been misled by the defendants’ counsel when they stated that they would not raise the question of immunity. The contract of insurance so specified, as well. We are not here, however, deciding questions of sovereign immunity, except peripherally. We are discussing and deciding questions of serious and important prerequisite jurisdictional procedures, without which we might as well abandon all rules of orderly conduct of lawsuits, disregard the mandates of the legislature and place everything upon an equitable basis of what we, as judges, might think the arrangement from day to day ought to be. Plaintiffs’ claim of estoppel is without merit; we cannot set up a government or court of men and not of law.
Before winding up this opinion, we must discuss the purchase of insurance by the University of Wyoming. The defendants have agreed not to raise the question of sovereign immunity and they are represented by insurance company counsel. Since
This court has on at least three occasions refused tort recovery in the presence of insurance, the act of procurement being ultra vires. Davis v. Board of County Commissioners of Carbon County, Wyo.1972, 495 P.2d 21; Maffei v. Incorporated Town of Kemmerer, 1959, 80 Wyo. 33, 338 P.2d 808, reh.den. 340 P.2d 759; Price v. State Highway Commission, supra. It must be accepted that Collins v. Memorial Hospital of Sheridan County, supra, sets aside Davis and Maffei, both involving local government. Price, involving a state agency, was not mentioned. The Wyoming state highway commission, following Price, finally got its authority in 1961,
“That the state highway department is hereby authorized to secure and maintain [insurance] against the risks of fire and theft or such other insurance as shall be deemed necessary on all motor vehicles and trailer attachments owned by the state highway department. The insurance so to be secured and maintained shall be in an amount which, in the judgment of the department, shall be adequate to protect the interests of the State of Wyoming and the state highway department. In securing such insurance the board shall take full advantage of experience ratings and groupings or master policies to the end that such insurance may be secured at the lowest possible beneficial rates and for the best interest of the State of Wyoming and the state highway department.”
The university did not have express statutory authority to purchase liability insurance covering this 1970 occurrence. That authority may now exist but only through the purchasing and property control division of the department of administration and fiscal control, State of Wyoming. In 1971, that agency was granted such authority by
What this really does is grind a little sharper the point earlier made that the State has a keen interest in having notice of the claims made against its insurance policies delivered to a central location—the office of the state auditor.
Until such time as the state legislature adopts some uniform system of handling state tort liability, either by sovereign immunity abrogation or limited coverage by
The trial judge properly sustained the motion for judgment on the pleadings, treated as a motion for summary judgment under
Affirmed.
GUTHRIE, C. J., concurs in the result.
ORDER
The court having examined the application for rehearing heretofore filed herein by appellant, and being fully advised,
It is ordered that the said application be and the same is hereby denied.
MCCLINTOCK, J., not participating.
ROSE, J., wishes the record to reflect that he did not sit on the original case or participate in the decision-making process and therefore expresses no opinion as to the result reached.
However, in examining the record, the opinion, and the grounds relied upon in the petition for rehearing, he applies the Wyoming Supreme Court rule applicable to such matters as expressed and employed traditionally in this court. See Town of Glenrock v. Chicago & North Western Ry. Co., 73 Wyo. 385, 279 P.2d 894, 281 P.2d 455.
The rule is that where the only reason advanced for a rehearing is simply reargument and repetition of counsel‘s views which have already received consideration, the Supreme Court will not grant a rehearing.
He finds no new facts or propositions of law relied upon in the petition for rehearing which were not originally considered by the Supreme Court in the case on appeal and therefore, for this reason and only for this reason, would deny the petition for rehearing.
George Earl OLDHAM, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
No. 4436.
Supreme Court of Wyoming.
April 23, 1975.
Rehearing Denied June 4, 1975.
534 P.2d 107