Awe v. University of Wyoming

• Decision Date: 17 March 1975
• Docket Number: No. 4379,4379
• Citation: 534 P.2d 97
• Parties: 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).
• Court: Wyoming Supreme Court

Page 97

534 P.2d 97

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.

Edward P. Moriarity, of Urbigkit, Moriarity, Halle & Mackey, Cheyenne, for appellants.

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 § 9-71, W.S.1957:

'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 constitute proper claims. The first suit was filed in the United States District Court for Wyoming on December 1, 1970. It was dismissed by plaintiffs themselves, when it was called to their attention that Art. I, § 8, Wyo.Const., requires suits against the State to be brought in such courts as the legislature designates.

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, 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 § 1-1018, W.S.1957, providing:

'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:

1. University personnel investigated the occurrence when the little boy fell.

2. Correspondence requesting information was written to university officials.

3. 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.

4. Attorneys for defendant-university took the depositions of plaintiffs-parents.

5. 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.

6. 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 § 9-71, and a formal claim, in proper form, exhibited to the state auditor, is a condition precedent to the filing of an action against the State of Wyoming, either under § 1-1018 or directly against the State and whether or not there is liability insurance.

Section 9-71 implements Art. XVI, § 7, of the Wyoming Constitution, which, on the date of the occurrence in this case, provided as follows:

'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 a lawsuit involving neglect to file a claim before initiating the case, this court held in Utah Construction Co. v. State Highway Commission, 1933, 45 Wyo. 403, 19 P.2d 951, ² that the failure of plaintiffs to present a claim to the state auditor or to the state highway superintendent was fatally defective. The court did not discuss the problem that might be raised as to whether or not the claim should be filed with the superintendent of the Wyoming state highway department or with the state auditor in the light of a statute requiring claims to be approved by the state highway superintendent and closed the subject by saying, '* * * The point is probably immaterial, as the petition fails to show that the claim was presented to either the state auditor or the highway superintendent.' (Pp. 417-418 of the Wyoming Reports and p. 952 of the Pacific Second Reporter.) The situation is the same here. No formal claim fitting the requirements of Art. XVI, § 7, of the Wyoming Constitution, or § 9-71 has been filed with either the state auditor or the appropriate University of Wyoming official.

In Utah Construction the court very simply disposed of the problem by stating that the statute, now § 24-29, W.S.1957, C.1967, giving the right to sue the state highway commission cannot be given a meaning that would evade the mandatory constitutional provision prohibiting the audit, allowance, or payment of a claim until it has been filed with the auditing officer, and that it did not have the effect of repealing or modifying § 9-71, requiring claims to be exhibited to the auditor 'within one year after such claim shall accrue, and not afterward.'

The appellants contend that the facts of the case now before the court do not fall within § 9-71, since, under no circumstances will there be any payments made out of the state treasury, the claim being completely covered by the insurance policy which the University of Wyoming has and the payments will be from the insurance company and not from University of Wyoming state-appropriated funds or the state treasury.

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 § 9-71 that it is not necessary if there be insurance. We do not see invisible words and must accept the constitutional provisions and statutory requirements as we behold them. This court has many times stated that it is a universal rule that courts will not enlarge, stretch, expand or extend the statute to matters not falling within its express provisions. Lo Sasso v. Braun, Wyo.1963, 386 P.2d 630, 632.

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 (§ 21-352, W.S.1957). An examination, however, of the duties of the board of trustees fails to distinguish it from the highway commission or the game and fish commission or the state board of charities and reform or the numerous other commissions and boards charged with the management and operation of a multitude of state agencies. The state highway commission controls...