*1 would result from granting credit for unused
abatements. Finally, we note that court provide did Mr. Grenz some credit for his overpayments. Wyo. Stat. Ann. 20-2- 311(d)(ii) (LexisNexis 2009) provides that the
district may enter its order modifying support
child retroactive to the date the ini tial motion for modification was served on parent. noncustodial In this motion to modify was served August 19, 2009, and the order modifying support child was entered on January 13, 2010. The dis court,
trict however, found that retroactivity of the new child support amount should be ordered January 1, 2010. Although the district court could have assessed approx imately $1,700.00 in additional retroactive support, child it declined to do so in light of the "history of $8,000 approximately in un abatements, used and the regular timely payments of child support over many years...."
[¶ 18] We concludethat the court did not abuse its discretion in denying Mr. Grenz
credit for unused child support abatements. Affirmed.
2011 WY40 PENNANT SERVICE COMPANY, INC,,
a Colorado corporation, Appellant
(Third-Party Defendant), TRUE OIL COMPANY, LLC, Appellee
(Third-Party Plaintiff). True Oil Company, LLC, Appellant
(Third-Party Plaintiff), Pennant Service Company, Inc., Appellee
(Third-Party Defendant). S-09-0234, Nos. S-09-0235. Supreme Court of Wyoming.
March *2 TON
ISSUES
Case 09-0284 follows: its issues states to dam- entitled A. Was damages prove failing to ages after contract? the breach a result came as alternative, if the indemnitee In the B. from the award entitled clause, then: ruling that err trial court 1. Did *4 showing poten- of burden indemnitee's an merely by the existence liability met tial claim? plaintiff's original ruling that err trial court Did the 2. presented, indemnity issue only an when jury trial? right to a no there is way: the issues states True Oil Company, Service Pennant Representing Service, Pennant Well of each A. Should of Karns E. Arney and Orintha Rex O0. Inc.: be resolved Inc.'s, arguments appellate Sheridan, LLP, Massey, Brown, & Drew LLC, aas Company, True Oil favor Karns. by Ms. Argument WY. Inc.'s, Service, ad- Well of Pennant result concession, fail- and missions, stipulation, Company, LLC: True Oil Representing in district arguments raise these ure to Murphy J. Patrick and P. Klosterman Scott court? P.C,, Neville, Porter, Williams, Day & Murphy. correctly find by Mr. court Argument B. Did Casper, WY. Company, indemnitee, True Oil $500,000.00 in breach to entitled was LLC, HILL, GOLDEN, KITE, C.J., and Before indemnitor, Pen- BURKE, *, JJ. and VOIGT Service, Inc.? Well nant HILL, Justice. Case 09-0235 cross-appeal a appeal and an This is presents True Oil appeal, cross In its LLC, Pen and Company, True Oil between following issues: cor Inc., a Colorado Company, Service nant its discre- abuse court district Did the 1. originally companies Both poration. attorney's fees award it failed to when tion brought action in a involved provi- contractual express an when to True in was he after Norman Van Christopher award, True and for such exists sion Oil set well accident. in an oil jured rebuttal trial without at its fees proved Norman Van court with out tled from Pennant? resolved was original suit $500,000.00. its discre- abuse court district Did the suit third-party only a 2005, leaving prejudgment to award failed tion when indemnifica and of contract alleged breach settle- liquidated True on interest a After and Pennant. True Oil tion attorney's $500,000.00 and the sum ment issues, court the trial on those trial bench it incurred? fees True Oil. favor of found as follows: the issues rephrases contract, and the have breached found attorney's provision a Whether A. $500,000.00 in dam awarded court solely in an contained fees appeal followed. This ages. consider Accordingly, * we shall appealed. argument. oral time of Justice Chief further. this issue party had that neither found district 1. The decision jury trial and a demanded clause allows an indemnitee to recover at- breached the terms of its Master Service torney fees for a direct negligence (MSC). action Contract alleged Oil that Pen where the indemnification clause nant (1) is void breached the by: MSC failing to pursuant Wyo. provide Stat. fully §Ann. personnel 80-1-1831. trained capable of operating equipment its and performing B. Whether its provision for attorney's (2) work; failing provide a full crew to fees solely contained in an indemnification perform work; (8) failing perform clause allows an indemnitee to recover at- work in good and manner; (4) workmanlike torney fees in an action between par- failing perform its work in compliance with ties to the contract attempting to establish all state laws, rules, federal regula right to indemnification. tions; failing to furnish True with C. Whether prejudgment interest insurance coverage. In its answer to True available on a settlement amount involving Oil's third-party complaint, Pennant admitted the discretion opinion party agreed that it to indemnify True Oil for the seeking the interest. amount of judgment or settlement D. Whether prejudgment interest is might be entered True Oil which is available on attorney's fees in the absence attributable to the negligence of Pennant and applicable statutory authority and ab- its employees. Settlement discussions en sence of notice. *5 sued between True Oil and Van Norman. Neither insurer, Pennant nor its Mid-Conti FACTS nent, participated despite invitations to do so. 7, On 2005, December True Oil accepted Van 3, July 2001, [¶ 3] On Christopher Van Norman's demand to settle all claims for the Norman severely was burned as the result of total sum of Five Hundred Thousand Dollars a flash fire on an oil gas and well owned ($500,000.00). In consideration for sum, this (True True Oil Company, Of), LLC Wyo Van agreed Norman to dismiss preju with ming company based that owns operates and dice all of his against claims True Oil for its various oil gas and wells throughout Wyo potential own negligence, as well as True ming. Van Norman was employed by Pen Oil's vicarious for negli- Pennant's nant Inc., Service Company, a Colorado cor genee arising out July 3, of the 2001 accident. poration that contracted with True Oil to provide Regarding the necessary the equipment, settlement between well as a Van Norman four-person Oil, and True crew perform Pennant signed a "workover" op stipulation agreeing to erations on the the True Oil well. "reasonableness" of settlement, the and all that re [¶ 4] Van Norman filed suit mained of the underlying litigation was the Oil, Halliburton, Inc., Weatherford, and even third-party claims between True Oil and Pen tually Pennant alleging, among things, other nant. A bench trial was held in August of that "... True Oil failed to properly and 2008, after which the trial court found Pen safely supervise said project, and otherwise nant to have breached its contract with True implement failed to basic important and safe Oil, and that the damages equal were to the ty precautions supervise and/or the proper settlement amount True Oil paid had Van placement of equipment at the well thereby Norman. Furthermore, Pennant pay was to creating or failing prevent a dangerous the attorney's fees and costs from the time work environment Norman]," [Van and the amended complaint was filed alleging that "Pennant and its employees, excluding liability. appeal This followed. himself, negligent and that such negli gence imputed to True Oil under the legal STANDARD OF REVIEW theory respondeat of superior."2 very [¶ 7] We recently stated in Hofstad [¶ 5] True Oil filed a third-party Christie, v. com 2010 ¶ 7, WY plaint against Pennant, alleging that Pennant (Wyo.2010): 818 2. Weatherford and Halliburton were each dis- August 16, 2005, respectively. missed from the suit on March 11, 2005,
703
contract) were
breaches
alleged
nant's
trial,
court re
Following a bench
the
naturally flowed
foreseeable
findings and conclu
court's
a district
views
MSC,
provide
failed
the
breaches
standard
clearly erroneous
using a
sions
within
damages were
the
that
any evidence
movo
a de
findings
factual
the
time
at the
parties
of the
contemplation
Pi
law.
the
conclusions
for the
standard
True Oil asserts
response,
contracting.
¶ 7,
Whelan,
WY
roschak
prove
required to
not
it was
that
Hansuld
(citing
(Wyo.2005)
887, 890
P.3d
"reason
to the
stipulated
Pennant
because
¶ 13,
2003 WY
Corp.,
Diesel
v. Lariat
with
settlement
True Oil's
ableness"
and Rennard
(Wyo.2008)
P.3d
maintains
True Oil
plaintiff.
original
(Wyo.
1277, 1279
Vollmar,
stipulation is
finds
if this Court
even
1999).
Hiability,the
of Pennant's
proof
are not
judge
of a
findings
factual
potentially
was
True Oil
shows
evidence
afforded
review
limited
to the
entitled
negligence.
for Pennant's
liable
findings are
While
verdict.
jury
correct,
appellate
presumptively
Christopher
began when
case
This
properly
all of
may examine
others,
Oil, among
sued
Norman
Van
Due
in the record.
evidence
admissible
True Oil
work.
injuries suffered
for his
opportunity
given
regard is
third-party
filed a
credibility of the
judge to assess
trial
essentially became
Company which
Service
entail
witnesses,
does
review
and our
the two
action
breach
Find-
evidence.
disputed
re-weighing
indemnifi
claimed
companies.
unless
aside
be set
will not
fact
ings of
breach
remedy
Pennant's
cation
finding is
A
clearly erroneous.
they are
repeatedly
asked
contract.
when,
there
although
clearly erroneous
negoti
in the settlement
participate
to either
it,
reviewing
support
is evidence
approve
or to
Norman
Van
ations with
*6
with
is left
evidence
entire
on the
court
partici
never
Pennant
settlement.
that a
conviction
firm
and
definite
in the end
but
negotiations,
pated
committed.
has been
mistake
the set
of
the "reasonableness"
stipulated to
Findings
Piroschak, ¶ 7,
P.3d at 890.
106
stated:
As
tlement.
would
we
because
aside
set
may not be
Pennant
and
True
action
[T]he
Harber
result.
a different
reached
have
negli-
acted
Pennant
alleging that
not one
¶ 7,
60
97
Jensen,
WY
an action
It is instead
True.
gently
Further,
(Wyo.2004).
participate
to
refusal
on Pennant's
based
pre-
the evidence
assume
we
with
for its settlement
indemnify True
give that
and
is true
below
vailing party
action.
in a
plaintiff
inference
every reasonable
party
to address
upon
is called
issue the Court
The
reasonably be drawn
fairly and
can
of
in breach
be
Pennant
follows: Would
is as
for
ourselves
not substitute
do
it. We
indemnify
to
required
if it were
facts;
in-
finder of
court as
trial
settlement
good-faith
for True's
Oil
findings unless
those
stead,
we defer
this
answer
The short
Norman?
with Van
record or
by the
unsupported
they are
yes.
question
law.
matter of
aas
erroneous
omitted) (some cita-
marks
(quotation
Id.
to ex
begin our efforts
We
omitted).
tions
ques
answer
more detailed
plain our
with
associated
law
examining the
tion
DISCUSSION
equi
in
roots
Indemnity has its
indemnity.
unjust en
of restitution
principles
table
Oil failed
argues that
Palmer, The Law
E.
George
richment.
for
damages
prove that
10.6(c) (1978).
who
person
"A
§
Restitution
as a result
reasonably foreseeable
expense of
at
unjustly enriched
Also,
has been
by Pennant.
of contract
the breach
restitution
to make
required
another
no
presented
argues that
§ 1
Restitution
(from
Restatement
other."
Pen
trial that
at
evidence
(1937).
Nat.,
Schneider
Inc. v. Holland
this Court
yet
has not
articulated the stan
Hitch
P.2d 561
The
dard or test for proving potential liability, we
traditional basis for distinguishing indemnity
persuaded
are
by the following description:
from tort
based
relied on unequal
The threshold
"potential
liability" is
fault of the actors.
Id.
high,
nor should it be. Where notice
[Any] attempt
to reconcile the numerous
given
has been
to the indlemnitor and the
decisions and particularly the sweeping
indemnitor has elected not to act
protect
pronouncements often
them,
found in
is an
himself, he,
effect,
in
consents to allow the
exercise
frustrating utility. The law as
indemnitee to act for him and will not be
to indemnity among tortfeasors,
like that
heard to complain about
the outcome-
them,
contribution among
is in a state of
except
very
limited circumstance
development,
flux
evolution,
and the
where the
not,
indemnitee
fact,
two, aspects,
some
appear to merge[.]
risk, but
paid
nevertheless
money that
1 Stuart
Speiser,
M.
Charles F. Krause &
would never have
plaintiff
owed to the
...
Gans,
Alfred W.
The American Law Torts
[The
test
liability may be
§
(1983) (footnotes
8:26 at 518
omitted).
both subjective
objective,
i.e., was the
general,
the action for indemnity
prem-
indemnitee at
risk of loss due to the
ised on the desirable shifting of liability from
claim and did the indemnitee have reason
party
paid
who has
damages but who
to believe he was at risk at the time the
should not have had to bear the entire bur-
settlement was entered into?
den alone. 6 Marilyn Minzer, Jerome H.
Camp, 853 So.2dat 1083.
Nates, Clark D. Kimball &
Axelrod,
Diana T.
Damages
in Tort
§
(1989).
Actions
50.21
[¶ 12] "The rule is the same in a
The
(Second)
Restatement
of Torts
case such as this where theories both within
886B(1)
(1979)states:
and without
the indemnity agreement
are
(1) If
persons
two
are liable in
tort
asserted
the indemnitee and
in-
person
third
harm,
the same
demnitor
one of
does not assume the defense of the
them discharges
both,
claims
he is
within
contract's
coverage."
entitled to indemnity from
Camp,
705 judgment if the amount of probable the dis- or approve to opportunity reasonable trial, prevail to plaintiff original the settlement. approve the possibility against the balanced (5th 354, Cir. 360 F.2d Ripp, 619 v. Burke prevailed. have would original defendant concurring). J., 1980) (Goldberg, at 855-356. Id. following the appreciate alsoWe case, De Michigan from a recent discussion Detroit, 2009WL underlying factual situation City v.Co. the Whether Edison troit (Mich. 1441 indemnity LEXIS 1830740, Mich.App. by the 2009 is covered 2009): analysis of 25, only straight-forward Ct.App. June requires the terms of and the underlying facts the bur settling indemnitee's Regarding Trunk, supra indemnity contract. Grand un the lability to establishing its den is con indemnity contract An at 357. indemni to entitled to be derlying plaintiff contracts as are same fashion in the indemnitor, strued the Court an from fication Clark, Hubbell, Inc. v. Roth & 448, generally. Giertz, Mich. 458 Hosp. v. Luke's St. Inc., Contractors, Mich.App. 249 Jay Dee (1998), quoted with 665 454, 581 N.W.2d (2001). Where 700 642 N.W.2d Am.Jur.2d, 41 following the approval added): is clear the contract (emphasis language of the p. 380 Indemnity, to is limited interpretation unambiguous, damages who legally liable person A. unambiguous An used. words the actual the may settle indemnity to is entitled according to its be enforced must the in- over recover claim Bailey, 260 Mich. v. Burkhardt terms. been has not demnitor, though he even (2004). The N.W.2d App. pay the loss. to by judgment compelled seeking indem allegations recover, set- the In order underlying com nification, as well as in- must show the claim tling determine examined must be plaint liable, that the legally demnitor obligation. indemnity is an there whether the event In was reasonable. settlement Bldg. 208 Mich. DeMaria Sherman is not indemmitor an afforded (1994); 601-602, N.W.2d App. in a settle- participating alternative of 479, 496, 484 Mich.App. Bogle, 193 Paul conducting the or ment defense (1992). N.W.2d claim, set- an indemmaitee original the burden re- case, indemnity clause will have claim tling the In this indemnify plaintiff origi- establishing quired defendant actual (1) damage to bur- lesser loss or tham the there is rather where plaintiff nal indirectly (2) directly KHability. or resulting [Ital- showing person, den of misuse, plain- use, presence or from the original.] ics city's premises electricity tiff's evidence submitted electricity passes elsewhere, after the afforded that defendant showed delivery defendant. point of underly- participate opportunity *8 loss claim for involved underlying action but declined negotiations, ing settlement by presence the killed person who was necessary Therefore, was it so. do it plaintiff after by electricity supplied liability in potential show its plaintiff that underly- The to defendant. was delivered on its to recover underlying action the seope of the clearly falls within ing claim defendant. claim for indemnity agreement. parties' the standard, liability potential the Under briefly de- address Finally, we wish that the to show only required was plaintiff an inter- is the that there argument reasonable fendant's was settlement finding that inconsistency one cov- situation factual nal underlying the liability" and "potential had indemnity plaintiff contract. by the ered precluding provision indemnity clause of the reasonableness the To determine damage in the or if the loss application the consider settlement, necessary to it is by active "occasioned case was underlying the light in settlement amount or em- agents plaintiff, exposure risk of The exposure. risk ployees." below, As discussed is not material fact regarding active negligence inconsistent plaintiff conclude that had under the indemnity provision. [Citations "potential liability" while at the same time and footnote omitted.] concluding that genuine there was no issue In [T14] the trial court did not of material fact exception the apply "potential the liability" However, test. indemnity provision regarding negli- active presume we can that the court apply did not genee apply. does not potential the liability test this case because Our Court has made clear that "po- the required Oil was not to make a showing liability" tential test first discussed in potential liability-rather, by stipulating to Ford, supra, require any does not plenary the $500,000.00 reasonableness of the settle- analysis discussion or of the indemnitee's paid by Oil, ment Pennant essentially liability in the underlying case. Grand pointed out True's liability. The Trunk, supra Instead, at 359-360. as the record reflects as much. After Pennant and Ford explained, Court "potential liability" TrueOil filed a Joint Statement of the Par- in these cases nothing "means more than ties, in which stipulation the found, Pen- the indemnitee acted reasonably in nant's counsel stated at trial: settling Ford, the underlying suit." supra [Initially, we were going to be here on at 278. What is settling "reasonable in the reasonableness of the settlement be- underlying suit" is determined consid- tween True and Van Norman. ering the following two criteria: $500,000.00 reasonableness of that set- The reasonableness of the settlement tlement longer is no an issue ... we are consists components, of two which are now down to the more usual comparative interrelated. The fact-finder must look apportionment fault analysis. at paid the amount in settlement of the claim light of the risk exposure. [¶ 15] Before stipulation to the rea exposure risk of probable is the sonableness of the occurred, settlement Pen amount judgment of a if the original nant was aware that the liability vicarious
plaintiff prevail trial, were to at balanced True Oil was an prior issue. proceedings against the possibility that original court, the court ruled that Van defendant prevailed. would have [Id.] Norman should be allowed to amend his com
plaint to add a vicarious claim that, True Oil. After True Oil filed its Thus, under the controlling law, case third-party complaint against Pennant. Pen although the exposure" "risk of is a consid- insurer, nant's Casualty Mid-Continent Com eration in determining the reasonableness pany, denied True Oil's demand for insurance of the settlement suit, the underlying coverage and a defense for the vicarious lia exposure risk of determined de- bility allegation. Mid-Continent filed a de termining probable amount of judg- claratory judgment action in the federal dis ment if plaintiff prevail trial, were to court, trict seeking a determination on those balanced the possibility that demands. The federal court noted that there original defendant would prevailed. have was a possibility realistic of liability in the Coming to general this more conclusion is facts and circumstances that existed follow quite different than the specific more ing the amendment of the Van Norman com demanding clause within the indem- more plaint, to include a claim agreement, nification which requires that it against True Oil. The court stated: proven be injury damage *9 by occasioned the negligence plaintiff. of agreed Pennant to indemnify True in the Thus, the standards are different and the Coverage MSC. for agreement this pro- generalized facts and pre- circumstances vided for in the CGL .... The by plaintiff sented regarding the settle- providing for from all ment and underlying case were sufficient claims damages and by caused negli- the satisfy to "potential this Hability" standard, gence others, of which would include the but do not establish genuine a issue of claims of vicarious in this 3, 2001, Pennant's July was on Norman Wy- applicable under enforceable and valid to the flat the well to circulate decision oming law. pit which tank, a flare than to rather labeled not Although it was [¶ 16] of the acci- the time being dug at was poten that the court such, with agree we dent. Van the when established liability was tial must be allocat- the fault 100% of 63. include a to amended was Norman ed to Pennant. liability. This conclusion vicarious for claim "only those argues that Pennant mere than the more upon much based was foresee natural and are the damages which Oil showing by True the but allegation, are recov of contract of a breach able result potentially it was the lawsuit throughout actually agrees with Pan True Oil mistakenly relies erable." Pennant liable. $500,000.00 the statement, and contends P.2d at Corp., 586 Petroleum American absolutely within was payment settlement states: which in the MSC. parties of the contemplation the a approve to declines an indemnitor [If in the MSC reads clause The indemnification burden the or assume settlement proposed as follows: defense, then of the the fullest extent To 6. liability to the Indemmification. a prove required to law, and shall by the Contractor permitted support in order plaintiff original indemnify, protect, defend agree to does indemnitor. against the claim affili- Company, its hold harmless and reason- stipulated Pennant owners, offi- joint companies, their ated case and in this the settlement ableness shareholders, directors, employees cers, in- possibility considered had to have "Indemnitee") (collectively agents and the con- with in accordance demnification claims, damages, loss- against all from and par- repeatedly asked was Pennant tract. suits, action, judgments, liens, es, causes of with negotiations in the settlement ticipate including at- expenses, penalties, fines the settlement Norman, approve or to Van nature, descrip- fees, any kind or torney respond object or did Pennant amount. "Liabilities") (collectively tion whatsoever the rea- stipulated to any until manner aris- entity whomsoever any person or of the settlement. amount of the sonableness by part or of, or in in whole ing caused out the breach Regarding any indirectly from directly or resulting object on claims, does Pennant to which omission, negligence, of including or act as follows: found appeal, sub-contractors, their or its Contractor Third-Party Complaint, In its 38. indirectly em- directly or anyone agents, breached Pennant alleged has they have anyone by them or ployed by: Contract Service over, the Master terms of control exercise or right to control person- (1) fully trained provide failing to part caused are if these liabilities even equipment and its operating capable of nel any In- or omission (2) work; provide failing to performing demnitee. (8) work; failing perform full crew ex- contract which executed Pennant work- good perform its work indemnify must that Pennant pressly states (4) manner; perform its failing to manlike judgments for settlements fed- all state and compliance with work arising of Pennant's out employees Pennant's regulations; laws, rules and eral well aware or omissions. acts cov- with insurance failing to furnish risk, Pen- of True Oil's erage. contract, indem- through agreed, nant pro- responsible 39. resulting nify True Oil em- all Pennant training to safety viding Furthermore, stipulating to therefrom. ployees. $500,000.00 settle- reasonableness Norman, Pen- to Van by True Oil paid ment lability" "potential Oil's supported True nant acci- cause proximate Christopher Van negligence. injured Pennant's which dent *10 T7O8 [¶ 19] We are convinced that the issue of party each pays fees, his or her own apprehension
reasonable prevailing party may be reimbursed for clearly instance, established in attorney's this and that provided fees when by con- proven this case tract or to a statute. [citations omitted.] degree reasonable certainty. Sannerud v. Meyer Hatto, In [¶ 23] 153, 2008 WY Brantz, 341, 879 P.2d (Wyo.1994). As ¶ 26, 552, 198 P.3d (Wyo.2008), 557-558 by contract, evidenced Pennant and True Court held specifically: more Oil each contemplated indemnification dam A prevailing party ... generally entitled ages bodily injuries they when signed. to be reimbursed for attorney's his fees The $500,000.00 district court's award of and costs express when an contractual au- True Oil is affirmed. thorization exists for such an award.... While general rule is that a valid Cross-Appeal True Oil's provision for attorney's fees in a [con- tract] as much an obligation of the Attorney 1. fees it, any part the trial court [¶ 20] We review a district still has discretion in exercising equi- its court's decision regarding the award of attor table control to only allow such sum itas ney's fees and costs for abuse of discretion. thinks reasonable. A trial court in its A court abuses its discretion when it may discretion properly disallow attor- acts in a manner which exceeds the bounds ney's altogether fees on the basis that of reason under the cireumstances. The bur such recovery would be inequitable. placed den is upon party who attacking Walters, Combs v. 1254, 518 P.2d the trial ruling court's to establish an abuse (citations (Wyo.1974) omitted). Shepard Beck, discretion. 53, 2007 WY ¶ [¶ 24] With these principles mind, we now turn question of attor cross-appeal, True Oil claims ney's fees between Pennant and True Oil. the trial court erred in declining to express provision contractual regarding award attorney fees. In the Judg Amended indemnification reads as follows: ment and Order by issued court, the trial To the fullest ex- Indemmification. attorney limited fees and costs award permitted law, tent by the Contractor shall ed to True Oil to those incurred from the agree does indemnify, protect, de- date of Van Norman's amended fend and hold harmless Company, (March 15, 2005), until the date of True Oil's companies, affiliated joint owners, their of- (December settlement with Van Norman ficers, directors, shareholders, employees 2005) on the basis during period, agents (collectively, "Indemnitee") True Oil was entitled to a defense of the from and claims, all damages, loss- claim. Regarding the at liens, action, es suits, causes of judgments, torney's fees incurred True Oil from Octo penalties, fines and expenses, including ber of 2001 to March of the trial court fees, attorney any nature, kind or de- denied the award of fees on the basis that seription whatsoever (collectively, "Liabili- True Oil was defending against claims of its ties") any person entity or whomsoever own negligence. finally, And regarding at of, arising out caused in whole part or in torney's fees incurred True Oil after De by or resulting directly or indirectly from 7, 2005, cember the court any denied award any omission, act or including negligence of fees and did not include a basis for the of Contractor [Pennant] its sub-contrac- denial in its order. tors, agents, their anyone directly or indi- Weiss, In Weiss v. 2009 WY rectly employed by them or anyone they ¶ 8, (Wyo.2009), this Court have the right to control or exercise con- held: over, trol even if these labilities are Although Wyoming generally subscribes part by caused in the negligence or omis- to the American rule regarding the recov- sion of indemnitee. [Emphasis add- ery attorney's fees, under which rule ed.]
709 indemnify the indemnitee purport which indemnity provision an interprets Court This damages for: liability for loss or against contract, affording the any other does as it injury persons; (i) bodily Ranch Death or meaning. Jacobs plain language its Co., LLC, (i) Coal or property; Basin Injury Thunder v. Co. Coal 125, (Wyo. ¶ 24, 133 101, P.3d 191 WY 2008 (ifi) loss, damage, expense or Any other Oil, this contractu 2008). (i) According to or from: arising under either complete evidence and clear (A) provision al concurrent sole or pay for all Pennant intent agents or em- parties' or the indemnitee attorney's losses, including and any inde- or the indemnitee ployees of any act part in from or fees, in whole caused directly re- who contractor pendent True Oil part of Pennant. on the indemnitee; or omission or sponsible to such breach Pennant's position its maintains (B) which occurs any accident From the sole was obligations contractual of its at the direction carried operations injuries to Christo the accident cause of the indemni- supervision of or under Norman, accordingly, Pennant pher Van representative of or employee tee or an attorney's Converse fees. its True Oil owes with in accordance or the indemnitee indemnity clause that the argues ly, Pennant in- specified means methods confer "unequivocally not does MSC in the representa- or employees or demnitee in a suit Pennant obligation on indemnity indemnitee, pub- are tives of parties." unenforceable are void and policy and lic in- contract of that such extent to the March prior incurred Attorney's Fees purports to relieve terms demnity its 2005 liability for or from loss attorney's denied court The district [¶ 25] shall provision This negligence. own his to March prior by True Oil incurred fees validity any insurance affect the of 2001 from October by the stating that conferred any benefit or contract "defending 16, 2005, True Oil 27-14 Law March Compensation [§§ Worker's Al negligence." own of its claims this state. through 27-14-805] 101 True Oil not allow does Wyoming law though viola- containing provision agreement "An attorney's fees for its for indemnified to be not void anti-indemnity statute is tive of it should asserts True Oil negligence, its own total, only to the but and unenforceable in attorney's fees for indemnified be Further, the statute. violates it extent of its own allegations defending curred except for prohibited indemnification negligence. negligence." Gainsco own the indemnitee's Co., 2002 WY Production Amoco findings of Ins. Co. court's In the district [¶ 26] (Wyo.2002). ¶ 82, 1075 P.3d 100% fact, that Pennant it stated is not although the MSC breached fault, Pennant and that negligence, liability arising The court available by True Oil. alleged manners all expend and costs attorney's fees reasonable $500,000.00 in dam True Oil then awarded action are underlying theof in the defense ed ages. Northwinds to be recovered. available an oil field has Wyoming Phillips Petroleum Wyoming, Inc. invali which anti-indemnity statute specific certain under clauses dates indemnification 80-1-131, § Regarding Ann. 30-1-131 Wyo. Stat. cireumstances. the indemnifica voids the statute argues that 2009) (LexisNexis as follows: states clause contained tion indemnity in Provisions § 30-1-131. from loss protects extent invalidity. contracts; certain questions negligence. own Supply Fuel upon Mountain reliance True's promises (a) or covenants agreements, All (Wyo.1978) Emerson, affecting any Co. v. in, to or collateral contained Northwinds, this Court oil, Northwinds. any well for pertaining correctly deter mineral, "the district held that water, mine for or gas *12 Phillips mined that was entitled to its reason fees, ... arising acts, out of [Pennant's omis attorneys' able fees and expended costs in sions negligence]." and/or defense of underlying the action." 779 P.2d agree [¶ 30] We with True Oil and This, Oil, argues 760. True indicates that beginning find the analysis of our in the Wyoming supports law argument True's that simplest places-the freedom to contract. it should be attorney's indemnified for fees Wyoming Center, Roussalis v. Medical and costs in defending incurred allegations of Inc., 209, 4 (Wyo.2000), 247 this Court However, its negligence. own held that it lightly does not interfere with the points out that Northwinds apply does not freedom of contract parties, and re 80-1-131, § and thus True Oil's reliance on iterated its nullify reluctance to provi misplaced. Northwinds is Pennant has simi sions of a by competent made par lar difficulties with True Oil's reliance on Furthermore, ties. we note that the district There, Mountain Supply. Fuel True Oil court determined the injured accident that urges that because the instant case and Van Norman was caused by 100% Pennant. Mountain Supply Fuel both contain almost Thus, provision indemnification clauses, indemnity mirror-like and because MSC was not a basis to upon by be relied the court in Mountain Supply Fuel held the district court denying in request True Oil's following, it is entitled to indemnification for attorney's fees. It is a valid and enforce attorney's fees. part able of the MSC. Consistent with our (Gainsco, ruling in Although parties' we take agreement note that in may be case, similar Mid-Continent Casualty Co. v.
void to the extent attempted that it to True Oil 05-CV-258J, Case indemnify No. Mountain Fuel from its own 6318834, WL Order on negligence, Cross this is Motions say not that Summary Judgment, p. 18 (U.S.D.C.Wyo. agreement is void to the extent it 2006), the federal district implicitly court sought concluded: indemnify Mountain Fuel from negligence. Emerson's ... the contract Such an is invalidated to the agreement prohibited is not 80-28.3, § extent agreement is purport- one supra. result, As a ing if Mountain to relieve Fuel True Oil is for its found negligent, not own Emerson is found and not from vicarious lia- negligent, ... then Mountain Fuel is enti- bility claims brought respondeat under a tled to superior theory. for its [Emphasis costs and original.] in legal provided fees as parties' agree- Relieving Oil of negli ment. gence, but then denying its attorney's fees in defending itself Pennant was an Id., 578 P.2d at 1358. abuse of discretion the district court. points out that to the extent True Oil is thus entitled to attorney's its fees Supply Mountain Fuel sought to indemni incurred in defending the claims associated fy Mountain Fuel Supply from Emerson's prior to March negligence, such an agreement prohib is not ited, and Mountain Supply Fuel was entitled Attorney's incurred December fees after to fees in that situation. [¶ 29] True Oil's bottom argument line [¶ 32] The district court denied True Oil's that the anti-indemnity appli statute has no request for reimbursement of attorney's its cation to this case indemnitee, because the fees incurred after December with Oil, was not negligent. True Oil states giving any out explanation. basis or that it is not attempting avoid majority [¶ 33] The its rule negligence; rather, own is that a argues it that it party is not entitled to its fees and attempting costs to recover a loss (attorney's fees) incurred in establishing right indemni expressly provided for in the ty: agreed MSC. Pennant indemnify and hold True Oil harmless from "all ... damages, general, virtually unanimous
losses ... expenses, including attorneys' appears rule to limit the allowance of
{11 ¶ the claim defense fees such Amended trial court's with the issue takes to extend indemnified does because Judgment and Order rendered for services allowance such pre the denial any explanation of contain indemnification. right to establishing the argues that Oil (Supp. § interest. True Indemnity, judgment Am.Jur.2d, trial judgment, Indemmity, exercising its 13d 1974); 42 CJ.S. finding Pen have considered should express the absence ... [In *13 causing the acci fault for 100% at nant was contrary, an the terms contractual accordingly, the in this dent legal fees may not recover prejudgment True Oil not have denied could in- right establishing his in incurred equitable consider of on the basis interest demnification. ations. Co., Inc. Construction v. Strom Jones 1115, 518, P.2d 527 (1974), Wash.2d 84 interest is Prejudgment [¶ 36] 1119. Wyoming where relief in accepted form of an Co., Mont. 249 v. Atlantic Amazi Richfield is defined as which "liquidated," is the claim (1991). also 431, See 434-35 355, P.2d 816 by basic math readily computable one that is Subcontractors, Corp. v. All-South Citadel Title Guar. Co. calculation. Stewart ematical 711, 712- 736, Inc., 458 S.E.2d Ga.App. 217 94, 46, ¶ 21, Tilden, 2008 WY v. University (1995); Regents v. 713 of Seifert (Wyo.2008). 101-102 (Minn. 83, Minnesota, 86-87 N.W.2d 505 allowed on the is Prejudgment interest App.1998). should be injured party theory an that clause at The [¶ 34] It is or her loss. for his fully compensated for the provides case present in the issue as addi- by law allowed compensation including attor legal expenses, recovery of money due use of damages for lost tional a claim. in the defense incurred ney's fees time be- lapse of during the damages pro it suggests clause Nothing in the and the date the claim accrual of tween the in expenses recovery legal vides for when the appropriate judgment. It is indemnity. right to establishing the curred in na- recovery compensatory underlying is attorney's fees that the part It is true easily is at issue the amount ture and when third- its prosecuting incurred True Oil interest upon which and one ascertainable necessary to those were party easily computed. can be MSC, and breached prove that Am. (citing 44 Id., ¶ 28, P.3d at 103-04 181 cause of the sole breach that Pennant's (2007). § Usury 39 Interest Jur.2d Howev injuring Norman. Van accident penalty constitutes Prejudgment interest after attorney's fees incurred er, True Oil's Rissler money when due. pay for failure spent on 2005, generally December v. Atlantic McMurry Co. & Richfield indemnifi right to its attempt to establish True Oil and The MSC cation. provide for expressly is principle not general Pennant does The [¶ 37] " in an attorney's ought fees incurred he recovery money which retains 'he who Accordingly, indemnity. charged interest to establish be action should pay to another discretion Corbin, not abuse court did Corbin the trial Linton it.'" 5 Arthur upon (1964). it determined when Contracts, n. 69 at 280 after De incurred attorney's fees for the compensated entitled claimant successful Hansen money 2005. owed. cember value" of lost "use Rothaus, P.2d 662 107 Wash.2d Prejudgment Interest (1986). is, prejudgment award of That an preventing nature of interest claims error True Oil also has who defendant unjust enrichment prejudg to award refusal trial court's B. 1 Dan payment. See delayed wrongfully interest Prejudgment interest. ment Remedies, 8.6(3), at 348-49 Dobbs, Law in some element appropriate ed.1993) ("in interest (2d many cases Wallace, WY Millheiser cases. necessary unjust award is to avoid ruling enrich court's that this was not an appropri ment of a defendant who has had the use of ate prejudgment case for interest. money things rightly belong which plaintiff"). CONCLUSION ruling [¶ 42] We affirm the on the breach 7, 2005, [¶ 38] On December of contract claim. Pennant breached its con $500,000.00 paid Christopher Oil Van Nor Oil, tract with True and the court's award of man to all settle claims asserted $500,000.00 to True Oil is affirmed. him. True Oil asserts that this amount was readily computable and, thus, liquidated. Regarding attorney's fees, we con Oil, According to True the district court clude that the trial right court was half in its including erred prejudgment interest Reversing court, decision. the trial we con in its Judgment Amended and Order. clude that True Oil is to its attor entitled *14 ney's fees incurred in defending the claims We Fargo [¶ 39] believe Wells Bank v. case, associated with this prior to March Hodder, ¶ 60, WY 144 P.3d 2005. we affirm the ruling court's (Wyo.2006), 420-21 is in instructive this in that True Oil is not entitled to attorney's fees There, stance. we stated: incurred after December Prejudgment interest an appropriate el Finally, [¶ 44] the trial ruling court's damages ement of in some cases. Mill this was not an appropriate prejudg case for Wallace, 40, ¶ 11, heiser v. 2001 WY ment interest is reversed. ap We have proved the prejudgment award of interest BURKE, Justice, concurring part in liquidated sums in breach of contract dissenting part. actions when the amount readily due is computable by simple mathematical caleu- I part [¶ 45] coneur in and dissent lation. Id. part. I disagree majority's with the decision to reverse the district court's denial of True's In [¶ 40] Laramie Rivers Co. v. Pioneer attorney claim for prior fees incurred to the Canal (Wyo.1977), filing of the amended complaint. I would we clarified that a mere opinion difference of affirm because, on this issue prior as to the amount due or liability as to does filing of the amended complaint, True was preclude prejudgment if interest being solely sued for its own negligence. amount sought to be recovered is a sum Any agreement indemnify to True forits own certain, party and the payment from whom negligence pursuant was void Wyo. to Stat. sought receives notice of sought. the amount 30-1-181(a)(iii)(LexisNexis2009): §Ann. Rivers, In Loramie sought the amount to be § 30-1-131. indemnity Provisions for recovered was prior established entry contracts; invalidity. certain Judgment by a written billing statement for a (a) agreements, All promises covenants or fixed amount. This Court remanded the in, contained collateral affecting to or any case to the district court for determination of agreement pertaining any oil, well for when the debtor received notice of the fixed gas water, any or mineral, or mine for amount claimed. purport which indemnify the indem- case, the instant the amount nitee liability loss or sought to be recovered was a sum certain of for: which Pennant had prior notice to the trial (1) bodily Death or injury persons; court's decision. Both parties were well (ii) Injury to property; or aware of the settlement amount between (iii) Any loss, other damage, expense or Norman, Oil and Van as was the court. (i) arising under either or As from: suggests, agree, and we $500,000.00 sum (A) awarded the court was a The sole or negligence concurrent liquidated sum. Given the circumstances of the indemnitee or agents or present in this we reverse the trial employees of the any indemnitee or arising out of directly for True Oil's own who is contractor independent by Pennant had no performed to be the work indemnitee; or responsible to such 30-1-131, Wy Wyo. due to Stat. effect (B) which occurs any accident From anti-indemnitystatute." oming oilfield the di- carried on operations en Shortly Judge after Johnson supervision of the or under rection repre- True, or employee summary judgment against or tered in ac- or the indemnitee Mr. Van in this action allowed sentative district and means complaint. methods This cordance with his amended Norman to file employ- or litigation the indemnitee in federal specified round of to a second led of the indemni- representatives time, Judge ees or Johnson determined court. This policy public tee, are entitled to indemnification that True was and unenforceable are void claims: indem- contract of extent that such all facts need not reiterate Court nity by purports to relieve terms raised and arguments have been from loss the indemnitee litigation further to deter- in this asserted negligence. provi- This own for his arguments are mine that Mid-Continent's validity of not affect the sion shall agreed to indem- without merit. Pennant any benefit con- contract or insurance Coverage for this nify True MSC. Compensation by the Worker's ferred provided for in the CGL. The agreement through 27-14- 27-14-101 [§§ Law indemnify only to the is void *15 of this state. 805] purported to that it was one which extent liability loss of added.)3 True Oil from obli relieve The contractual (Emphasis negligence. The by True Oil's own impact Wyo. caused and the here gation issue obligation was § 30-1-181 on providing for agreement Ann. Stat. by the claims and caused from all addressed, slightly different con in a albeit others, include negligence of which would text, court for by the federal district case, liability in this claims of vicarious Wyoming in Mid-Continent Casu District applicable under Co., valid and enforceable 05-CV- Case No. alty v. True Oil Co. (U.S.D.C.Wyo. Wyoming law. 258-J, 2006 WL 2006), majority opinion. referenced that were recognized Cireuit The Tenth lawsuits federal There were two 46] [¶ obligation Wyo. Ann. regarding Mid-Continent's operation of Stat. it not for the 30-1-131, ex- § an insured contract would indemnify True for claims and
to defend and-and, and True ist between Pennant in this case. by Norman asserted Mr. Van an addition- accordingly, True Oil would be by True after initiated The first action was policy with Pennant's CGL al insured on rejected True's initial de had Mid-Continent True Oil Co. v. Mid-Con- Mid-Continent. provide a defense Mid-Continent mand that [645], Casualty Fed.Appx. by made Mr. tinent indemnify True for claims Cir.2006) (10th The Tenth Cir- ]. at 650 [ its deni based Norman. Mid-Continent Van however, on, go to consider cuit did not indemnity provision that the al on its claim valid and en- the contract was void as whether "was True's contract with extent did foreeable to the Wyo. 80-1- violating policy of Stat. public anti-indemnity Mid-Con Judge agreed with Wyoming stat- 131." Johnson violate the that had the believes summary ute. This Court granted its motion tinent and if it had the issue circuit court considered the decision appealed True judgment. court, Judge have According to Johnson: it would affirmed. been before conclusion that Circuit, the same Court, deter reached the Tenth "This finds that here. This Court whereby Court reaches indemnity provision mined that only to the ex- is invalidated the contract harmless agreed to hold True Oil indemnify the indemmnitee agreement purport[s] indemnity undisputed that the It is damages." "agreement pertain- liability ... this case is an loss or at issue in oil, gas ... which ing or water well for [14
tent that purporting is one provide coverage did not prosecuting counterclaim, to relieve True fromOil for its own the Wyoming court deter- lability and not from vicarious mined the required insurer was not brought respondeat claims superi- under expense assume the of prosecuting in- theory. permitted sured's counterclaim and the in- Accordingly, the Court finds that the surer to allocate and recover those costs. partial summary motion for judgment filed True, by seeking a determination that it is This essentially case has presented been entitled to seek indemnification for the separate pieces litigation. as two allegations late-raised of vicarious Court believes Mid-Continent is not litigation, the Van Norman should be required pay by the costs incurred granted. To the extent that Mid-Conti- litigation True in the prior Van Norman nent's motion and responses seek con- complaint, to the amendment trary determination, request will be that was not a matter for which there denied. coverage and it has been determined (Footnotes omitted.) emphasis properly that Mid-Continent refused to Despite finding for True on its in defend. "apportionment" No of covered demnity claim arising from the vicarious lia and non-covered necessary claims is in this bility allegations in the complaint, amended case. None by of the law cited Judge specifically Johnson denied True's obliges pay Mid-Continent to costs of de- attorney claim for fees prior incurred to the fending where there was no coverage.
filing of the
complaint:
amended
added.)
(Emphasis
In this
argued
True has
that Mid-Continent
court's decision denying attorney fees for the
pay
must
all
costs incurred
period prior
filing
of the amended
defending all of
litigation.
this related
complaint dovetailed with the conclusions
disagrees.
This Court
It
Wyo
is true that
reached
Judge Johnson in the federal
*16
ming
requires
law
an insurer to defend an
litigation.
entire action. Shoshone First Bank v. Pa
Employers Ins.
(Wyo.
P.3d 510
majority's
cific
decision to reverse
2000). Mid-Continent has tendered a de
the district court and award attorney fees is
fense to True for the
liability
vicarious
essentially premised upon "the freedom to
allegations
against
asserted
it in the Van
contract"
precedent
and our
as reflected in
litigation,
Norman
under a reservation of
Wyo.
Petroleum,
Northwinds
Phillips
rights.
urges
this Court
to deter
(Wyo.1989)
tion in
True's
arguing the issue of
raising or
oppo-
and Plaintiff Van Norman's
Motion
as well as his
to that motion
sition
5. Mountain Wyo. See Stat. Ann. to its own fault. attributable comparative adoption fault reflected § 1-1-109. Mountain Fuel Wyo. Ann. 1-1-109. Stat. faced Supply, the indernitee hearing transcript on the joint no 6. There is because of amount of full complaint in the record amend the Sondgeroth, motion to liability. See Haderlie several 2005 letter appeal. E was a March Exhibit (Wyo.1993). Prior True's counsel. filing the amended