Abraham v. Great Western Energy, LLC, 03-226.

• Decision Date: 24 November 2004
• Docket Number: No. 03-226.,03-226.
• Citation: 101 P.3d 446,2004 WY 145
• Parties: Craig ABRAHAM and Kim Abraham, husband and wife, individually, and on behalf of their minor children, Ethan Abraham, Jessica Abraham, Sheldon Abraham, and Branden Abraham; and Gary A. Barney, as Bankruptcy Trustee for Craig Abraham and Kim Abraham, Appellants (Plaintiffs), v. GREAT WESTERN ENERGY, LLC, a Montana corporation, d/b/a Wyo. L.P. Gas; and Big Horn Co-Operative Marketing Association, a Wyoming corporation, Appellees (Defendants).
• Court: Wyoming Supreme Court

101 P.3d 446

2004 WY 145

Craig ABRAHAM and Kim Abraham, husband and wife, individually, and on behalf of their minor children, Ethan Abraham, Jessica Abraham, Sheldon Abraham, and Branden Abraham; and Gary A. Barney, as Bankruptcy Trustee for Craig Abraham and Kim Abraham, Appellants (Plaintiffs), v. GREAT WESTERN ENERGY, LLC, a Montana corporation, d/b/a Wyo. L.P. Gas; and Big Horn Co-Operative Marketing Association, a Wyoming corporation, Appellees (Defendants).

No. 03-226.

Supreme Court of Wyoming.

November 24, 2004.

Representing Appellants: William L. Simpson of Simpson, Kepler & Edwards, LLC, Cody, Wyoming, and Diane Vaksdal Smith of Burg, Simpson, Eldredge, Hersh and Jardine, P.C., Cody, Wyoming. Argument by Ms. Smith.

Representing Appellees: John V. McCoy and Thomas C. Hofbauer of McCoy & Hofbauer, Waukesha, Wisconsin, and Bradley D. Bonner of Bonner & Stinson, P.C., Powell, Wyoming, for appellee Great Western Energy, LLC; Scott McColloch of McColloch & Burns, Greybull, Wyoming, and Thomas W. Pahl, David M. Dahlmeier, and Jessica B. Rivas of Foley & Mansfield, PLLP, Minneapolis, Minnesota, for appellee Big Horn Co-Operative Marketing Association. Argument by Messers. Dahlmeier and McCoy.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

HILL, Chief Justice.

[¶ 1] Craig Abraham was severely burned and permanently injured in a propane gas flash fire¹ at his home in Otto, Wyoming, on July 29, 2000. On November 29, 2001, a complaint was filed in the district court naming Craig, as well as his wife Kim Abraham and their four children, as plaintiffs (collectively the Abrahams).² In their complaint, the Abrahams asserted that they ran out of propane gas (which was used to run two hot water heaters and a furnace) in late July of 2000. Kim Abraham called Great Western Energy, LLC (GWE)³ and asked it to deliver 50 gallons of propane. Craig was unable to get the hot water heater to light after that delivery was made, and so he ordered a second delivery of propane from Big Horn Co-Operative Marketing Association (Big Horn). He called Big Horn for the second delivery because it was the only supplier open on Saturday. Following the second delivery, Craig made a second attempt to light the hot water heaters and that effort eventuated in the flash fire.

[¶ 2] The Abrahams averred that GWE and Big Horn were negligent because they "failed to provide adequately odorized gas, preventing Craig Abraham from being alerted to the presence of propane when he was attempting to light the pilot light. Furthermore, [both GWE and Big Horn] failed to follow proper off-loading procedures, violated industry safety standards, and failed to perform the necessary inspections to ascertain whether the gas system was safe...." In addition, they claimed that because of the inherently dangerous nature of propane gas, GWE and Big Horn owed a duty to ensure that their product was safely delivered and used in a safe manner. The Abrahams' complaint included claims for negligence, strict liability (defective product), and willful and wanton misconduct. Big Horn answered the complaint on February 28, 2002, denying any negligence on its part and raising numerous affirmative defenses, including spoliation (destruction) of evidence. GWE answered on August 1, 2002, denying any negligence on its part and also raising numerous defenses, including spoliation of evidence ("certain evidence may have been tampered with, destroyed, lost and/or undergone destructive testing to [its] prejudice.").

[¶ 3] On June 4, 2003, Big Horn filed a motion for summary judgment that ran to almost 400 pages. The central issue in that motion was that it was entitled to summary judgment because of spoliation of evidence. On June 30, 2003, GWE filed a very similar motion for summary judgment centered on the spoliation of evidence issue.

[¶ 4] The Abrahams opposed both motions by papers filed on June 25, 2003, and July 16, 2003, respectively. In the later document, the Abrahams asked for a continuance and asserted that the deadline for discovery was August 15, 2003, but that the hearing on the motions for summary judgment was scheduled for July 28, 2003. The Abrahams contended this additional time was important in order to respond to the affidavit of an expert witness submitted by Big Horn.

[¶ 5] A decision letter granting the motions for summary judgment was filed of record on August 5, 2003, and an order memorializing the decision letter was entered on September 3, 2003. The effect of the summary judgment order was that the Abrahams' complaint was dismissed with prejudice. It is from that order that this appeal is taken, as well as the district court's denial of the Abrahams' motion for continuance, which was incorporated into the summary judgment order.

ISSUES

[¶ 6] The Abrahams articulate these issues:

1. Whether denial of [the Abrahams'] Rule 56(f) motion for a continuance to substantively respond to pending motions for summary judgment constitutes an abuse of discretion and reversible error?

2. Whether the trial court should have denied the motions for summary judgment because material facts remained in dispute concerning [the Abraham's] causes of action as well as the allegations of spoliation of evidence?

3. Whether dismissal of [the Abrahams'] entire case, without proof of intentional spoliation and without consideration of the Abrahams' claims unrelated to the alleged spoliated evidence, is reversible error?

Big Horn responds with this statement of the issues:

I. Dismissal of all claims is appropriate where a litigant, intentionally or negligently, disposes of crucial evidence involved in an accident before the adversary has an opportunity to inspect the accident scene. Here, before [Big Horn] was notified of the propane fire, unidentified persons entered the Abrahams' residence with [their] knowledge and destroyed critical physical evidence from the flash fire. Did the district court err in granting [Big Horn's] summary judgment motion in light of the complete destruction or alteration of the physical evidence that precluded [the Abrahams] from proving their allegations against [Big Horn]?

II. Wyoming law recognizes that "the whole purpose of the procedural technique of a summary judgment would be defeated if cases could be forced to trial by the mere assertion that a genuine issue of material fact exists." Here, [the Abrahams] failed to argue below that there were material facts that defeated summary judgment and no amount of additional discovery will change the undisputed facts which the district court relied upon in dismissing [the Abrahams'] claims. Did the district court err in Granting [Big Horn's] summary judgment motion where [the Abrahams] failed to point to evidence raising disputed issues of material fact and where the undisputed facts in the record demonstrated that loss of physical evidence from the fire prevented [them] from proving their claims against [Big Horn]?

III. A district court has the discretion to order a continuance only where a party demonstrates that more time is needed for discovery in order for that party to respond to a summary judgment motion. Here, [the Abrahams] sought a continuance to respond to [GWE's] motion for summary judgment less than two weeks before the oral argument, claiming they needed more time for discovery after a two-year opportunity to conduct discovery. No such similar request for a continuance was made as to [Big Horn]. Did the district court here abuse its discretion by denying [the Abrahams'] motion for a continuance where [they] had two years to conduct discovery and where no amount of additional discovery was going to change the undisputed facts in the record?

GWE presents this statement of the issues:

1. Whether [the Abrahams] lack standing to pursue this appeal;

2. Whether the district court properly granted summary judgment because there were no remaining issues of material fact and [GWE was] entitled to judgment as a matter of law;

3. Whether the district court properly dismissed [the Abrahams'] case because, due to permanent alteration of the evidence, [their] case rests only on speculation and [GWE] is irreparably prejudiced;

4. Whether the district court acted within its discretion when it denied [the Abrahams'] Rule 56(f) motion for a continuance because adequate time was afforded and any further discovery would have been fruitless; and

5. Whether [the Abrahams] are judicially estopped from pursuing this appeal.

In their reply brief, the Abrahams contend GWE and Big Horn raised several new issues that they articulate as follows:

A. [GWE] argues that the [Abrahams] lack standing to pursue this appeal.

B. [GWE] argues that [the Abrahams] are judicially estopped from bringing this appeal.

C. [GWE] argues that the trial court did not dismiss the Abrahams' claims as a sanction for spoliation of the evidence.

D. [GWE and Big Horn] argue that Wyoming law recognizes spoliation of evidence and would permit the sanction of dismissal, based on authorities not from Wyoming.

E. [GWE and Big Horn] argue that the Abrahams failed to timely pursue discovery, and the denial of the Rule 56(f) motion for continuance was proper because further discovery would have been futile.

FACTS AND PROCEEDINGS

[¶ 7] Since this case was disposed of pursuant to GWE's and Big Horn's motions for summary judgment, the applicable standard of review requires this Court to view the evidence in a light most favorable to the Abrahams, to disregard the evidence favorable to GWE and Big Horn, and to embrace any and all inferences to be drawn from the evidence in favor of the Abrahams. Therefore, we will confine our recitation of the facts to that standard. The Abrahams moved into the residence where the flash fire occurred in late May of 2000.⁴ At the time they moved into the five-bedroom house, the pilot for the furnace was not lit because it was summer, but the landlord lit the pilots for the water heaters. It was...