Johnson v. Aetna Cas. & Sur. Co. of Hartford, Conn., No. 5223

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before RAPER; McCLINTOCK
• Citation: 608 P.2d 1299
• Parties: Carl A. JOHNSON, as his interest may appear, Appellant (Plaintiff), v. AETNA CASUALTY & SURETY CO. OF HARTFORD, CONN. 06115, and Richard G. Burk, Resident Claim Rep., 1616 Warren Ave., Cheyenne, Wyoming, Richard L. Bader, 214 E. 17th St., Cheyenne, Wyoming, and Unknowns Obstructing Justice, Appellees(Defendants).
• Docket Number: No. 5223
• Decision Date: 01 April 1980

Page 1299

608 P.2d 1299 Carl A. JOHNSON, as his interest may appear, Appellant (Plaintiff),
v.
AETNA CASUALTY & SURETY CO. OF HARTFORD, CONN. 06115, and Richard G. Burk, Resident Claim Rep., 1616 Warren Ave., Cheyenne, Wyoming, Richard L. Bader, 214 E. 17th St., Cheyenne, Wyoming, and Unknowns Obstructing Justice, Appellees(Defendants). No. 5223. Supreme Court of Wyoming. April 1, 1980.
Rehearing Denied April 21, 1980.

Page 1301

Carl Johnson, pro se.

Richard P. Boley, Lathrop & Uchner, P. C., Cheyenne, for appellee Aetna Cas. & Sur. Co. of Hartford, Conn.

Donald J. Sullivan, Sullivan, Van Court & Ahlstrom, P. C., Cheyenne, for appellee Bader.

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

McCLINTOCK, Justice.

Appellant seeks review of a district court order dismissing with prejudice his separate causes of action against an insurance company and a claims adjuster for failure to pay an insurance claim on real property. The questions presented by this appeal are:

(1) Whether the complaint as to each defendant fails to state a claim upon which relief can be granted as required by Rules 12(b)(6) and 9(b), W.R.C.P.

(2) Whether the cause of action against the company fails to allege the necessary conditions precedent for recovery under an insurance policy as required by Rule 9(c), W.R.C.P.

(3) Whether appellant has failed to join necessary parties as required by Rule 19, W.R.C.P.

We find that the district court erred in dismissing the complaint with prejudice and remand the case for further proceedings.

Appellant (Carl A. Johnson), Vincent J. Siren and Anne Marie Siren Levig were named plaintiffs in the original complaint, and appellee (Aetna Casualty & Surety Company of Hartford, Connecticut) and Richard G. Burk were named defendants. Appellant, acting pro se, alleged in his original complaint that four houses and outbuildings owned by him, his nephew (Vincent J. Siren) and his niece (Anne Marie Siren Levig) were damaged by a hail storm on June 16, 1977. He further alleged that this property was insured by appellee Aetna and even though appellant complied with all of the insurance policy requirements Aetna refused to pay for the hail damage and "threatened to cancel" the insurance policy. The case was set for trial and on the day of trial the district court judge granted Aetna's motion to strike the complaint on the grounds that Vincent J. Siren and Anne Marie Siren Levig did not sign the complaint nor were they represented by an attorney, and, furthermore, because appellant is not a member of the bar he could not represent these parties. Appellant was given ten days to amend his complaint. The order sustaining the motion to strike did not state that the complaint failed to state a claim for which relief could be granted, that Johnson had failed to allege necessary conditions precedent to recovery under the insurance policy, or that Vincent J. Siren and Anne Marie Siren Levig were necessary parties to the action.

Johnson timely filed an amended complaint naming only himself as plaintiff in compliance with the district court's order. The amended complaint did, however, add a new defendant, Richard L. Bader, an insurance adjuster and appellee in the case at bar. The original defendants moved to dismiss the amended complaint because of a failure to join indispensable parties as required by Rule 19, and for failure to state a claim upon which relief can be granted. A hearing was held on the motion to dismiss and after the hearing the district court dismissed the complaint with prejudice as to defendant Richard G. Burk and reserved ruling on the motion as to Aetna. The dismissal with prejudice as to Burk was not

Page 1302

appealed. The district court held another hearing and at that time dismissed the entire amended complaint, pursuant to Rules 12(b)6 and 12(b)7, W.R.C.P. Johnson was given an additional ten days to amend his complaint.

After Johnson timely filed his second amended complaint Aetna and Bader once again moved to dismiss the complaint. Aetna alleged that Johnson failed to join necessary parties as required by Rule 19 and Bader alleged among other things that the second amended complaint failed to state a claim upon which relief can be granted. After a hearing the district court dismissed the complaint with prejudice.

The first question that we must address is whether the district court correctly dismissed this last complaint for failure to state a claim upon which relief can be granted. This court will only sustain such a dismissal if the complaint on its face shows that the plaintiff is not entitled to relief. A complaint is not subject to dismissal unless there is no doubt that the plaintiff cannot prove any set of facts that would entitle him to relief. State Highway Commission v. Bourne, Wyo., 425 P.2d 59, 63 (1967). Wyoming Rules of Civil Procedure are based upon the theory of notice pleading. Rule 8(a)(1), W.R.C.P. The plaintiff need only plead the operative facts involved in the litigation so as to give fair notice of the claim to the defendant. Harris v. Grizzle, Wyo., 599 P.2d 580, 583 (1979). And, as we have stated before, pleadings must be liberally construed in order to do justice to the parties and motions to dismiss must be sparingly granted. Harris, supra, 599 P.2d at 583; Bourne, supra, 425 P.2d at 63.

With these standards in mind, we find that appellant's second amended complaint as to the claim against Aetna is sufficient to withstand a Rule 12(b) (6) motion. Appellant alleges in his complaint that he owns the property that was damaged by the hail storm, that the property was insured against loss by Aetna, and that he complied with the insurance policy requirements. He further alleges that Aetna breached the insurance contract when the company refused to pay the claim made by Johnson for the hail damage.

The more difficult question is whether Johnson's complaint is sufficient to withstand a Rule 12(b)(6) motion as to the claim against appellee Bader. To begin with, Bader's motion to dismiss simply alleges that the complaint fails to state a basis or claim for which relief can be granted. And the order dismissing the complaint against Bader with prejudice likewise does not specify why...