The CITY OF CHEYENNE, a Municipal Corporation, Charles H. Garey, an Individual, Petitioners (Defendants), v. In the Matter of Patricia E. HUITT and Douglas G. Madison, as Personal Representatives for the Estate of Steven L. Huitt, deceased, and on behalf of Patricia Huitt, individually, Ericka Stephenson, individually, Joseph Huitt, individually, Wayne Huitt, and Sheila Huitt, individually, Respondents (Plaintiffs).
No. 91-259
Supreme Court of Wyoming
Jan. 12, 1993.
844 P.2d 1102
“... [T]he parties have the right to employ whatever lawful terms they wish and courts will not rewrite them.”
4. “Absent ambiguity, there is no room for construction and the policy will be enforced according to its terms.”
5. “... [W]here such [insurance policy] contracts are so drawn as to be ambiguous and uncertain and to require construction, the contract will be construed liberally in favor of the insured and strictly against the insurer. Also, if the contract is fairly susceptible of two constructions, the one favorable to the insured will be adopted.”
Commercial Union Insurance Company v. Stamper, 732 P.2d 534, 539 (Wyo.1987) (citations omitted).. See also Northern Improvement Company v. Wyoming State Highway Commission, 802 P.2d 889 (Wyo. 1990).
If an insurance contract‘s language is plain and unequivocal, we apply our usual rule that interpretation of the contract is a question for the court to resolve as a matter of law. Ricci v. New Hampshire Insurance Company, 721 P.2d 1081, 1085 (Wyo.1986). A primary objective of interpreting an insurance contract is to ascertain the parties’ objectives and to ascribe the plain, ordinary, and customary meaning to each term used in order to effectuate the parties’ intent. Northern Improvement Company, 802 P.2d at 892; Worthington v. State, 598 P.2d 796, 806 (Wyo.1979).
We perceive no ambiguity in the insurance contract at issue. The policy is clear on its face that the insured person is protected in the event that he sustains bodily injury damages caused by an accident involving an uninsured or underinsured motorist. The tort-feasor in this instance was insured with policy limits of $100,000. The motorist was not “uninsured,” and, since the tort-feasor‘s policy limits were the same as those in the Shirleys’ policy, the motorist was not “underinsured.” Thus, Farmers Insurance has no contractual obligation to the Shirleys under the policy‘s uninsured motorist provision and is entitled to judgment as a matter of law.
The respondents and the intervenors ask that we employ the doctrine of “reasonable expectations.” We have previously held that the doctrine is not applicable when the insurance contract is not ambiguous. St. Paul Fire and Marine Insurance Co., 763 P.2d at 1262-63.
Our holding gives full force and effect to the insurance contract itself, as well as to the intendment of such insurance policy provisions.
The district court‘s order is reversed with directions that a partial summary judgment be entered in favor of Farmers Insurance consistent with this opinion. The Alternative Writ of Mandamus is dissolved, and the matter is remanded to the district court for further proceedings.
URBIGKIT, J., concurs in the result only.
Rebecca A. Lewis of Hirst & Applegate, Cheyenne, for petitioners.
Rhonda S. Woodard of Burke, Woodard & Bishop, Cheyenne, for respondents.
Before URBIGKIT, C.J., THOMAS, CARDINE and GOLDEN, JJ., and ROONEY, J., (Retired).
A Writ of Certiorari was issued by this court to the First Judicial District Court, Laramie County, upon petition of the City of Cheyenne and Charles Gary (City) for the purpose of reviewing the following issue:
“Is a city fire department a ‘public utility and service’ within the meaning of Wyoming Statute Section 1-39-108 such that it is exempted from the immunity granted by Wyoming Statute Section 1-39-104?”
The district court had previously denied petitioners’ Motion for a Summary Judgment, which motion was premised upon a claim of immunity, and it had previously denied petitioners’ Motion for Reconsideration of Denial of Summary Judgment and Entry of Judgment, which was premised upon the same claim.
Respondents contend the City did not enjoy immunity under
Steven Huitt, an Airman stationed at F.E. Warren Air Force Base, was assigned as a firefighter to the Base Fire Department. On April 21, 1988, he was involved, along with other firefighters from the United States Air Force and the City, in a joint firefighter training exercise on the Base. The exercise involved the burning of a building on the Base. During the exercise, Steven Huitt entered the building, where he died. Respondents are his relatives and the personal representative for his estate. They brought this action alleging negligence on the part of the City.2 Since a denial of a Motion for Summary Judgment without more is not normally an appealable final order, the Petition for a Writ of Certiorari was filed.
Wyo.Stat. § 1-39-108
Respondents contend that the waiver of immunity contained in
“A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of public utilities and services including gas, electricity, water, solid or liquid waste collection or disposal, heating and ground transportation.”
The City contends that firefighting is not an “operation of public utilities and services including gas, electricity, water, solid or liquid waste collection or disposal, heating and ground transportation” and is, therefore, not within the waiver of immunity contained in
In Gibson, 811 P.2d 726 and Worden v. Village Homes, 821 P.2d 1291 (Wyo.1991), we held that the immunity waived by
If we would accept respondents’ contention that firefighting is included among the governmental operations for which immunity is waived by
We have a duty to make sense out of the statutes if at all possible. Mauler v. Titus, 697 P.2d 303 (Wyo.1985). They should not be construed to be meaningless but should be given a reasonable and practical construction. Id.; State Board of Equalization v. Cheyenne Newspapers, Inc., 611 P.2d 805 (Wyo.1980). The meaning of a statute should be ascertained as nearly as possible in the language of the statute itself. Department of Revenue and Taxation of State of Wyoming v. Hamilton, 743 P.2d 877 (Wyo.1987); In re Adoption of MM, 652 P.2d 974 (Wyo.1982); Department of Revenue and Taxation v. Irvine, 589 P.2d 1295 (Wyo.1979); Johnson v. Safeway Stores, Inc., 568 P.2d 908 (Wyo. 1977).
Accordingly, since the negligence of firefighters is not specified in
Wyo.Stat. § 1-39-106
Respondents contend that the waiver of immunity contained in
“A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, recreation area or public park.”
The plain and ordinary meaning of the words “operation or maintenance of any building” does not encompass the deliberate destruction of it. In the context of the Act, the operation of a building is not the same as an operation on a building, and while the maintenance of a building is that done on or to a building, that done under maintenance is just the opposite of the destruction of it.
The circumstances here, with reference to the building, were obviously not those for which the legislature intended to waive immunity in enacting
Reversed and remanded with instructions.
CARDINE, J., files a dissenting opinion.
CARDINE, Justice, dissenting.
I would affirm the denial of summary judgment. A building was here maintained for the purpose of training firefighters. In the usual course of using a building for training, the building will be set afire, the fire put out, the building set afire again, the fire extinguished, and on and on. Here the building was destroyed. But that should make no difference in the outcome. I would hold that the application of W.S. 1-39-106 results in a waiver of immunity and would affirm the trial court‘s denial of summary judgment.