Cline v. Safeco Ins. Companies, 5260

Citation614 P.2d 1335
Decision Date15 July 1980
Docket NumberNo. 5260,5260
PartiesDonald M. CLINE and Cline Plumbing & Heating, Inc., successor in interest to Plumbing Contractors, Inc., Appellants (Plaintiffs), v. SAFECO INSURANCE COMPANIES, Levi, Inc., and Ralph Levi, Individually, Appellees(Defendants).
CourtUnited States State Supreme Court of Wyoming

Stuart S. Healy, of Kennedy, Connor & Healy, Sheridan, for appellants.

W. W. Reeves, of Vlastos & Reeves, P. C., Casper, for Safeco Insurance Companies, appellee.

Lawrence A. Yonkee of Redle, Yonkee & Arney, Sheridan, for Levi, Inc. and Ralph Levi, appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

This case arose when appellee-Safeco Insurance Companies refused to accept responsibility under a general liability insurance contract for a lawsuit initiated against appellants Donald M. Cline and Cline Plumbing & Heating, Inc., by a third party because of defective work performed by the appellants. Appellants concede that the literal language of the contract excludes coverage, but generally argue that the contract is unfair and unconscionable and that the insurance salesman, appellee-Ralph Levi, and appellee-Levi, Inc., made promises contrary to the policy. The district court granted the appellees summary judgment. Appellants argue that the district court's substantive legal conclusions, as well as the We will affirm.

award of summary judgment, are inappropriate.

THE FACTS AND CONTENTIONS

Donald Cline and his former wife Sharon, ran a plumbing service business called Plumbing Contractors, Inc. Mr. Cline apparently did the plumbing work or supervised employees, and Mrs. Cline discharged most of the other managerial and clerical duties. In this capacity, Mrs. Cline visited with Ralph Levi about purchasing liability insurance for the business. Mr. Levi suggested a certain insurance policy. Mrs. Cline's description of the conversation that ensued is taken from her deposition and is referred to by all parties to this appeal:

"Q Well, tell me as best you can what your conversation with Ralph (Levi) was about the insurance.

"A Well, I asked him just what the insurance I said, 'What kind of insurance do we have, is it adequate or do we need more liability or what,' and he said it sticks in my $300,000 worth of liability, is what I thought he told me at that time. And he said, 'That should be adequate for anything that comes up,' and, let's see, then I says, 'I don't know that much about insurance, Ralph, will this cover us for bodily harm to any of our working men'? And he says, 'Well, really, you don't have that much to worry about, Sharon, because Workmen's Comp will take care of most bodily injury that you have, but I suppose that it would, if it went anything over Workmen's Comp, that it would take care of it.' And I says, 'What about any goofups that we do, anything that someone would sue us that we was liable for,' and he says, 'Oh, yeah, this is adequate,' I says, 'Okay, now, is this the best insurance I can buy, the very best? In other words,' I said, 'Ralph, can I go down here and buy insurance from somebody else that's better,' and he says, 'No, of course, this is the very best.'

"Q Do you remember anything else?

"A That's about it.

"A . . . what I asked for was if he thought Plumbing Contractors' policy was adequate for Cline Plumbing & Heating, that I wanted the same thing, and he said it was very adequate. So he gave me the same thing."

After this conversation, Mrs. Cline bought the Safeco policy which had been the object of their conversation. (Subsequently, the Clines were divorced and the plumbing business was reorganized as Cline Plumbing and Heating, Inc. The insurance policy was assigned. The assignment is not challenged and we recite this history merely to explain who the appellants are.)

While the insurance was in effect, Cline contracted orally with the Sawyers, trailer-court operators, to construct some water and sewer lines. Some of this work proved defective and the Sawyers sued to recover their costs in repairing or redoing the defective work. Although Cline conceded liability for connecting a water line to a sewer line, he argued that other defects were the result of using cheaper and less-desirable materials and procedures, a risk which he asserted the Sawyers had assumed. The trial judge awarded the Sawyers a judgment of $8,400.60. Cline appealed and we held that inasmuch as the case had been tried, at least in part, in negligence, the trial judge had not fulfilled his duty to make findings of fact and conclusions of law requested by Cline, concerning the apportionment of negligence. We, therefore, remanded for revision and/or supplementation of the findings of fact and conclusions of law. Cline v. Sawyer, Wyo., 600 P.2d 725 (1979).

When the Sawyers first sued Cline, Safeco originally defended by asserting a written non-waiver agreement. After depositions had been taken, Safeco concluded that there was no insurance coverage because the Sawyers' claim was limited to "damage "This insurance does not apply:

to work performed by Cline." Safeco relied on the following provisions of the insurance contract:

"(d) to property damage : . . . (7) to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.

"(g) to loss of use of tangible property which has not been physically injured or destroyed resulting from

"(1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement, or

"(2) the failure of the named insured's products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured ;

. . .."

Cline's counsel concedes that appellate courts would consider the contract provisions clear and unambiguous. It was established, however, that Mrs. Cline had not completed high school and that Mr. Cline does not feel that he can properly read and understand an insurance contract. Cline argues that the above exclusions are unconscionable, particularly in light of the propensity of insurance companies to use complex language in policies and the tendency of insurance salesmen to overstate the benefits of a policy. Cline urges, from these depositions, that summary judgment was inappropriate in the case.

In analyzing this appeal, it is extremely difficult to determine with any more exactitude than just stated what the appellants' issues are. In clear violation of Rule 5.01(2), W.R.A.P., appellants have failed to provide "(a) statement of the issues presented for review." We have previously criticized briefs in which the arguments do not correspond on a one-to-one basis with the list of issues. Mariner v. Marsden, Wyo., 610 P.2d 6 (1980). The absence of a list of issues is a more serious problem. We have, on many occasions, either invoked or adverted to Rule 1.02, W.R.A.P. (or its predecessor), which authorizes us, inter alia, to refuse to consider the contentions of a party violating the Wyoming Rules of Appellate Procedure. E. g., Dechert v. Christopulos, Wyo., 604 P.2d 1039 (1980); Strang Telecasting, Inc. v. Ernst, Wyo., 610 P.2d 1011 (1980); Simpson v. Occidental Building & Loan Ass'n, 45 Wyo. 425, 19 P.2d 958 (1933); Robertson v. Shorow, 10 Wyo. 368, 69 P. 1 (1902); and Trabing v. Meyer, 3 Wyo. 133, 5 P. 569 (1885). It is not our job to draw up a list of issues to frame appellant's argument. For this court to undertake this task would mean that we would run the risk of deciding the appeal on an issue with respect to which the appellee had not been notified and thus had inadequate defense opportunities.

In the "Preface to Argument" section of appellants' brief, there is a statement to the effect that we need be concerned on appeal with "only the issue of whether Summary Judgment was properly rendered as a matter of law, in this instance under the facts and circumstance peculiar to the separate claims of the Appellants."

This is not a particularly helpful statement of an issue. We view appellants' main argument as being that the insurance contract was unconscionable and that there are apparently factual disputes relevant to the unconscionability argument which were improperly resolved against the appellants in order to reach the summary judgment. Appellants' full argument section supports additional issues, but we are not going to frame these other issues for the appellants.

UNCONSCIONABILITY

Engine Service, Inc. v. Reliance Insurance Company, Wyo., 487 P.2d 474 (1971), is relevant to the issue here for decision and is a case which appellants concede has been favorably received by other appellate courts....

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