Davenport v. Epperly, No. 87-56

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before BROWN, C.J., THOMAS, URBIGKIT and MACY, JJ., and LANGDON; BROWN
• Citation: 744 P.2d 1110
• Decision Date: 03 November 1987
• Docket Number: No. 87-56
• Parties: 2 IER Cases 1456 Scott A. DAVENPORT, Appellant (Plaintiff), v. Howard C. EPPERLY, Jr., and Robert Cochrane, Carbon County Coal Company, Appellees (Defendants).

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744 P.2d 1110 2 IER Cases 1456 Scott A. DAVENPORT, Appellant (Plaintiff),
v.
Howard C. EPPERLY, Jr., and Robert Cochrane, Carbon County Coal Company, Appellees (Defendants). No. 87-56. Supreme Court of Wyoming. Nov. 3, 1987.

George Santini of Charles E. Graves and Associates, Cheyenne, for appellant.

Catherine MacPherson of Johnson, MacPherson & Noecker, Rawlins, for appellees.

Before BROWN, C.J., THOMAS, URBIGKIT and MACY, JJ., and LANGDON, District Judge.

BROWN, Chief Justice.

Appellant Davenport contends that appellees Epperly and Cochrane intentionally interfered with his employment contract. The district court granted summary judgment in favor of appellees and appellant appeals.

Appellant states one issue:

"Are co-employees subject to liability for intentional interference with an employment contract between an employee and their common employer?"

Answering the issue posed by appellant in the affirmative would not dispose of this case. He argues principles other than those suggested by his statement of the issue.

Appellees present the issues as:

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"1. Was the entry of an order granting summary judgment proper, i.e., were there no genuine issues of material fact and were the defendants entitled to judgment in their favor as a matter of law on the claim of intentional interference with contract?

"2. Is a co-employee, who holds a supervisory position, as an agent of the company, and whose job duties require him to terminate and discipline employees, subject to liability for intentional interference with contract between another employee and their common employer?"

We will affirm.

Before October 24, 1985, both appellant and appellees were employed by Carbon County Coal Company. Appellee Cochrane was the training coordinator while appellee Epperly acted as mine superintendent.

On October 19, 1985, Cochrane saw Davenport hunting elk. At the time, appellant was receiving worker's compensation benefits and was on the employer's salary continuance program pending his return to work. On the salary continuance program, the employer pays the difference between the worker's compensation payment and the regular salary of the worker. Under the company's salary continuance program, disabled employees are required to report to the mine each work day at 9:00 a.m. October 19 was a Saturday, and ordinarily would have been Davenport's day off. The company had no written rules, policies or procedures limiting what employees on salary continuation could or could not do with the exception of requiring that said employees "report in."

On the following Monday, Cochrane reported to Epperly that he had seen Davenport hunting elk on October 19. Based on this report, a decision was made to recommend Davenport's termination. Joel Strid, the general manager of the mine, approved the termination letter drafted by Epperly. In the letter, Davenport was informed that he was being terminated for the following reasons:

"Your misrepresentation of facts in regard to your ability to return to work from your disability status and to perform the duties and responsibilities of your job.

"Your misrepresentation of facts in regard to your disability status which resulted in your continuing to receive salary continuation benefits.

"Your use of time off, with the company's salary continuance program, to engage in activities which are contrary to the intent of this program which indicates a discrepancy in your disability status."

While at a meeting with Epperly and the employee relations manager on October 24, 1985, Davenport was told that he was discharged. At that time, he protested the discharge on grounds that he went hunting with his doctor's verbal approval. He said he had exercised caution to avoid reinjury while elk hunting and transporting the meat back to his vehicle. Despite these protests, the termination was not rescinded; however, Davenport was told that if he obtained a written confirmation from his physician that he had permission to go elk hunting, the company would reconsider its decision. Davenport made numerous requests for such a letter from his treating physician but no letter was provided. However, in his deposition, Dr. Robert J. Curnow stated that he verbally approved appellant's hunting trip.

Appellant filed suit against Cochrane and Epperly alleging "intentional interference with contract." The trial court granted summary judgment in favor of appellees, resulting in this appeal.

Wyoming does recognize the tort of "intentional interference with contract." We said in Toltec Watershed Improvement District v. Johnston, Wyo., 717 P.2d 808, 813-814 (1986):

"Tortious interference with a contract is defined as:

" 'One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other

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from the failure of the third person to perform the contract.' Restatement (Second) of Torts § 766, p. 7 (1979).

"In an interference with contract action, Board of Trustees of Weston County School District No. 1 v. Holso, Wyo., 584 P.2d 1009, 1016-1017 (1978), we said that the necessary elements of proof were:

" '(1) the existence of a valid contractual relationship or business expectancy;

" '(2) knowledge of the relationship or expectancy on the part of the interferor;

" '(3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and

" '(4) resultant damage to the party whose relationship or expectancy has been disrupted.' "

Although Wyoming recognizes the tort of intentional interference with contract, we hold that the trial court properly granted appellee's motion for summary judgment. Rule 56(c), Wyoming Rules of Civil Procedure, provides that summary judgment " * * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law * * *." The court granted summary judgment to appellees based on depositions, affidavits and stipulations contained in the pretrial order.

This court's standard for reviewing the propriety of summary judgment is well established. England v. Simmons, Wyo., 728 P.2d 1137 (1986). The initial burden is on the movant to show that there is no genuine issue of material fact. Fiedler v. Steger, Wyo., 713 P.2d 773 (1986). Once that showing is made, it is...