Irene v. Seneca Ins. Co.

• Decision Date: 10 November 2014
• Docket Number: Nos. S–13–0232,S–13–0233,S–13–0234.,s. S–13–0232
• Citation: 337 P.3d 483,2014 WY 145
• Parties: Jeffrey Gerard IRENE and Christine Delauter as conservator of minor children MI and EI, Appellants (Plaintiffs), v. SENECA INSURANCE COMPANY, INC., a foreign corporation, Lederman Bonding Company, a foreign corporation, and Eric A. Overlie, Appellees (Defendants). Lederman Bonding Company, a foreign corporation, and Eric A. Overlie, Appellants (Defendants), v. Jeffrey Gerard Irene and Christine Delauter as conservator of minor children MI and EI, Appellees (Plaintiffs). Seneca Insurance Company, Inc., a foreign corporation, Appellant (Defendant), v. Jeffrey Gerard Irene and Christine Delauter as conservator of minor children MI and EI, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

337 P.3d 483
2014 WY 145

Jeffrey Gerard IRENE and Christine Delauter as conservator of minor children MI and EI, Appellants (Plaintiffs)
v.
SENECA INSURANCE COMPANY, INC., a foreign corporation, Lederman Bonding Company, a foreign corporation, and Eric A. Overlie, Appellees (Defendants).

Lederman Bonding Company, a foreign corporation, and Eric A. Overlie, Appellants (Defendants)
v.
Jeffrey Gerard Irene and Christine Delauter as conservator of minor children MI and EI, Appellees (Plaintiffs).

Seneca Insurance Company, Inc., a foreign corporation, Appellant (Defendant)
v.
Jeffrey Gerard Irene and Christine Delauter as conservator of minor children MI and EI, Appellees (Plaintiffs).

Nos. S–13–0232
S–13–0233
S–13–0234.

Supreme Court of Wyoming.

Nov. 10, 2014.

337 P.3d 484

Representing Appellants, Jeffrey Gerard Irene and Christine DeLauter, S–13–0232: Kenneth R. Friedman and A. Richard Dykstra, Friedman Rubin, Seattle, Washington; Robert T. Ingram and Scott J. Olheiser, Ingram Olheiser, P.C., Casper, Wyoming. Argument by Mr. Dykstra.

Representing Appellee, Seneca Insurance Company, S–13–0232: William M. McKellar, McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming; Harry Steinberg, Lester Schwab Katz & Dwyer, LLP, New York, New York. Argument by Mr. Steinberg.

Representing Appellees, Lederman Bonding Company and Eric A. Overlie, S–13–0232: Scott P. Klosterman, Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Klosterman.

Before BURKE, C.J., and HILL, KITE^* , DAVIS, and FOX, JJ.

Opinion

BURKE, Chief Justice.

¶ 1] Jeffrey Irene incurred serious injuries after being struck and pinned under a vehicle driven by Douglas Downs in the early morning hours of December 30, 2007. Mr. Downs had been arrested for driving while under the influence of alcohol approximately two hours prior to the incident and was detained at the Natrona County jail. Eric Overlie, a licensed bail bondsman and an agent of Lederman Bonding Company, posted bail to procure Mr. Downs' release from custody. Mr. Irene and Christine DeLauter, as conservator of Mr. Irene's minor children MI and EI, filed suit against Mr. Overlie and Lederman, as well as Seneca Insurance Company, the entity which guaranteed the bond, claiming that Mr. Overlie had been negligent in releasing Mr. Downs from his custody after bailing him out of jail. All defendants filed motions for summary judgment asserting that they did not have a duty to protect Mr. Irene or other members of the general public from injury caused by Mr. Downs. The district court denied the motions.

[¶ 2] Approximately one month prior to the final pretrial conference, Mr. Overlie, Lederman, and Seneca filed motions to dismiss the complaint under W.R.C.P. 12(b)(6), claiming the suit had not been filed within the two-year statute of limitations set forth at Wyo. Stat. Ann. § 1–3–107, which governs causes of action arising from the rendering of licensed or professional services. The district court granted the motions to dismiss. In Docket No. S–13–0232, Mr. Irene and Ms. DeLauter challenge the district court's dismissal of their complaint. Mr. Overlie and Lederman challenge the denial of their motion for summary judgment in Docket No. S–13–0233, and Seneca challenges the denial of its motion for summary judgment in Docket No. S–13–0234. We reverse the district court's decision to dismiss the complaint under W.R.C.P. 12(b)(6) in Docket No. S–13–0232. As a result of that decision, and because the orders denying the motions for summary judgment are not final, appealable orders, we dismiss the appeals in Docket Nos. S–13–0233 and S–13–0234.

[337 P.3d 485

ISSUES

¶ 3] In Docket No. S–13–0232, Mr. Irene and Ms. DeLauter present the following issues:

1. Whether the trial court erred in applying the rule stated in St. John v. Wagner when it ruled that Defendant Overlie's negligent acts were “of a professional nature.”

2. Whether Wyoming's professional malpractice statute, § 1–3–107, applies when a “professional” negligently harms a non-client third party with whom he has no professional relationship or dealings.

We do not address the issues raised in Appellees' cross-appeals.¹

FACTS

[¶ 4] On the night of December 29, 2007, Douglas Downs was arrested for driving under the influence of alcohol after spending part of the evening drinking at the Sandbar Lounge in Casper, Wyoming. He was taken to the Natrona County jail, where a breath test revealed a .11% blood alcohol content. At approximately 1:00 a.m. on December 30, Mr. Downs was released from custody after a surety bond was posted by Eric Overlie, an agent of Lederman Bonding Company. As a condition of Mr. Downs' release, the Natrona County Sheriff's Office required Mr. Overlie to sign a “Release and Hold Harmless Agreement” under which Mr. Overlie agreed “to hold Natrona County Sheriff['s] Office, its agents, [and] employees harmless from any liability resulting from this release.”

[¶ 5] Mr. Overlie drove Mr. Downs to the office of Speedy Release Bail Bonds, which was located on the same street as the Sandbar Lounge. Mr. Downs then walked from the office to the Sandbar, telling Mr. Overlie that he would catch a ride home with friends who had remained at the bar. After arriving at the bar, Mr. Downs consumed another alcoholic beverage before agreeing to drive a friend home in her vehicle. As Mr. Downs was exiting the parking lot in his friend's truck, he struck Mr. Irene, who became trapped underneath the vehicle. Mr. Downs proceeded to drive over a mile while dragging Mr. Irene beneath the vehicle, which resulted in serious injuries to Mr. Irene.

[¶ 6] Appellants filed their complaint on September 13, 2011. The Release and Hold Harmless Agreement was attached to the complaint. Appellants claimed that Mr. Overlie

[337 P.3d 486

had been negligent in agreeing to accept custody of Mr. Downs from the Natrona County Sheriff and in releasing him under circumstances in which he was likely to cause harm to others. In August, 2013, after approximately two years of discovery, Appellees filed motions for summary judgment. They also moved to dismiss the complaint under Rule 12(b)(6), asserting that the complaint was not filed within the two-year statute of limitations for “professional malpractice” under Wyo. Stat. Ann. § 1–3–107.² The motions were heard at a final pretrial conference held on September 6, 2013. Following the hearing, the district court denied the motions for summary judgment and granted the motions to dismiss. The court found that “[a]ll of the acts of negligence asserted in the Complaint for Damages in this action are alleged to have been committed by Defendant Eric A. Overlie while rendering licensed or certified professional insurance and bail bond services.” As a result, the court concluded that the complaint had not been timely filed under Wyo. Stat. Ann. § 1–3–107.

¶ 7] Mr. Irene and Ms. DeLauter appealed the district court's dismissal of their complaint under W.R.C.P. 12(b)(6). Appellees filed cross-appeals challenging the denials of their motions for summary judgment. The appeals were consolidated for argument and decision.

STANDARD OF REVIEW

[¶ 8] When reviewing a W.R.C.P. 12(b)(6) motion to dismiss, we accept the facts stated in the complaint as true and view them in the light most favorable to the plaintiff. We will sustain such a dismissal when it is certain from the face of the complaint that the plaintiff cannot assert any fact which would entitle him to relief. Stroth v. North Lincoln County Hosp. Dist., 2014 WY 81, ¶ 6, 327 P.3d 121, 125 (Wyo.2014). Dismissal under W.R.C.P. 12(b)(6) is a drastic remedy, which should be granted sparingly, and is appropriate only when it is certain the plaintiff cannot assert any facts that would entitle him to relief. Simon v. Teton Bd. of Realtors, 4 P.3d 197, 200 (Wyo.2000).

DISCUSSION

Docket No. S–13–0232—Dismissal Under W.R.C.P. 12(b)(6)

[¶ 9] In their complaint, Appellants asserted two causes of action against Appellees. In their first cause of action, Appellants alleged that

45. Defendants ... took charge and control of Downs, whom they knew or should have known to be likely to cause bodily harm to others if not controlled and given the opportunity to operate a motor vehicle. Despite this knowledge, [Defendants] released charge and control of Downs, and thereby breached a duty of ordinary care of a reasonable person in the same or similar circumstances.

They also alleged that

46. Defendants ... breached their duty of ordinary care when Overlie accepted custody and responsibility for Mr. Downs and knowingly allowed him to return to the Sandbar Lounge under such circumstances that they knew or should have known he was likely to drive a vehicle while under the influence of alcohol, and posed a serious danger of injury or death to others while operating a vehicle.

In their second cause of action, Appellants alleged that Appellees had breached a duty under Restatement (Second) of Torts § 324A, which provides as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

[337...