Makinen v. PM P.C., 94-71

• Decision Date: 18 April 1995
• Docket Number: No. 94-71,94-71
• Citation: 893 P.2d 1149
• Parties: Randy J. MAKINEN and Lorie B. Makinen, Appellants (Plaintiffs), v. PM P.C., a Wyoming corporation; The Officers and Directors of Larry's, Inc., a Wyoming corporation, Larry F. Suchor (President), Joe (George) O. Suchor (Vice-President), and Leo Suchor (Secretary/Treasurer); and Jim Larscheid (Employee of PM P.C.), each individually and severally, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1149

893 P.2d 1149

Randy J. MAKINEN and Lorie B. Makinen, Appellants (Plaintiffs), v. PM P.C., a Wyoming corporation; The Officers and Directors of Larry's, Inc., a Wyoming corporation, Larry F. Suchor (President), Joe (George) O. Suchor (Vice-President), and Leo Suchor (Secretary/Treasurer); and Jim Larscheid (Employee of PM P.C.), each individually and severally, Appellees (Defendants).

No. 94-71.

Supreme Court of Wyoming.

April 18, 1995.

Andrew W. Decora of Decora Legal Services, P.C., Laramie, representing appellants.

Christopher B. Petrie of Schaefer & Lewis, P.C., Laramie, representing appellees PM P.C. and Larscheid.

Patrick T. Holscher of Schwartz, Bon, Walker & Studer, Casper, representing appellees Suchors.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

MACY, Justice.

Appellants Randy Makinen and Lorie Makinen appeal from the district court's order which granted a summary judgment in favor of Appellees PM P.C. and Jim Larscheid and from the district court's order which granted a summary judgment in favor of Appellees Larry Suchor, Joe (George) Suchor, and Leo Suchor (the Suchors).

We affirm.

Issues

The Makinens present three issues on appeal:

I. Whether the statutory requirement to give notice to the director of the Worker[s'] Compensation Division and the Wyoming Attorney General is a condition precedent to the filing of an action under W.S. § 27-14-105, resulting in a lack of subject matter jurisdiction for failure to comport therewith[?]

II. Whether the district court erred when it granted summary judgment to defendants, Larry, George and Leo Suchor, on the premise that plaintiff[s'] theory of the case against them was based on a theory of co-employee liability when plaintiffs explicitly framed the lawsuit against them not as co-employees, but as third parties having separate duties to plaintiffs[?]

III. Whether the district court erred when it granted summary judgment to defendants, PM, P.C., and Jim Larscheid[,] partly on the premise that plaintiff[s'] theory of the case against them was based on a theory of co-employee liability when plaintiffs explicitly framed their lawsuit against them not as co-employees, but as third parties having separate duties to plaintiffs[?]

Facts

Mr. Makinen worked as a construction worker for Larry's, Inc., a Wyoming corporation. The Suchors were the officers of that corporation. Larry's, Inc. contracted with the Town of Saratoga to install water and sewer lines for that town (the Saratoga project). PM P.C., an engineering firm, designed the Saratoga project. Mr. Larscheid, an engineer employed by PM P.C., was assigned to the Saratoga project.

During the evening of October 25, 1991, while they were working on the Saratoga project, Mr. Makinen and another Larry's, Inc. employee were in the bottom of a ditch, tamping the earth with a compacting machine. At the same time, Larry's, Inc.'s project manager was operating a front-end loader to backfill a portion of the ditch. Mr. Makinen was positioned so that he had his back to the loader as he was operating the compacting machine. The project manager apparently dumped a load of the fill material near Mr. Makinen. Mr. Makinen contended that he was knocked to the ground and that his back was injured when some of the fill material struck him.

Mr. Makinen received worker's compensation benefits for his injuries. When the Workers' Compensation Division terminated Mr. Makinen's benefits, the Makinens filed this action in the district court against Appellees and several other defendants. Mr. Makinen sought damages for his injuries, and Mrs. Makinen claimed that she had suffered a loss of marital consortium as a result of Mr. Makinen's injuries. ¹

Appellees filed motions for summary judgments, and the district court granted those motions. The district court also certified, pursuant to W.R.C.P. 54(b), that no just reason existed for delaying the entry of the summary judgments. The Makinens appealed to this Court.

Discussion

A. Jurisdiction

The Makinens contend that the district court erred by ruling that it did not have subject matter jurisdiction over the case as it pertained to PM P.C. and Mr. Larscheid. Initially, we note that the order entered by the district court did not reflect the ruling alleged by the Makinens. The district court's order found only that

there is no genuine issue as to any material fact and that Defendants, P.M., P.C., and Jim Larscheid[,] are entitled to Summary Judgment as a matter of law in their favor against the Plaintiffs[,] Randy J. Makinen and Lorie B. Makinen[,] on all of the Plaintiffs' claims against P.M., P.C., and Jim Larscheid.

The district court, however, stated in its decision letter following the summary judgment hearing that it did not have jurisdiction over the matter "due to [the] Makinen[s'] failure to give notice of the filing of this suit to the director and attorney general as required by the Wyoming Worker['s] Compensation Act." Even though the district court's decision to grant a summary judgment in favor of PM P.C. and Mr. Larscheid may not have been made upon the basis of a lack of jurisdiction, we will consider the jurisdictional issue on appeal. Jurisdictional issues may be considered at any time. Gookin v. State Farm Fire and Casualty Insurance Company, 826 P.2d 229, 232 (Wyo.1992).

Pursuant to WYO.STAT. § 27-14-105 (1991), when an injured employee who is covered by the Wyoming Worker's Compensation Act wishes to pursue his remedies at law by filing a lawsuit, he must serve both the director of the Department of Employment and the attorney general with copies of the complaint:

(a) If an employee covered by this act receives an injury under circumstances creating a legal liability in some person other than the employer to pay damages, the employee if engaged in work for his employer at the time of the injury is not deprived of any compensation to which he is entitled under this act. He may also pursue his remedy at law against the third party or the coemployee to the extent permitted by W.S. 27-14-104(a). If the employee recovers from the third party or the coemployee in any manner including judgment, compromise, settlement or release, the state is entitled to be reimbursed for all payments made, or to be made, to or on behalf of the employee under this act but not to exceed one-third ( 1/3) of the total proceeds of the recovery without regard to the types of damages alleged in the third-party action....

(b) The director and the attorney general shall be served by certified mail return receipt requested with a copy of the complaint filed in any suit initiated pursuant to subsection (a) of this section. Service of the complaint on the director and attorney general is a jurisdictional requirement in order to maintain the suit. The director and the attorney general shall be notified in writing by certified mail return receipt requested of any judgment, compromise, settlement or release entered into by an employee. If there is a settlement, compromise or release entered into by the parties in claims against a person other than the employer, the attorney general representing the director shall be made a party in all such negotiations for settlement, compromise or release. The attorney general and the director, for purposes of facilitating compromise and settlement, may in a proper case authorize acceptance by the state of less than the state's claim for reimbursement. The proceeds of any judgment, settlement, compromise or release are encumbered by a continuing lien in favor of the state to the extent of the total amount of the state's claim for reimbursement under this section and for all current and future benefits under this act.

(Emphasis added.)

The Makinens filed their complaint on February 1, 1993, but they did not serve a copy of the complaint upon the director or the attorney general at that time. PM P.C. and Mr. Larscheid filed a motion for a summary judgment on November 5, 1993, arguing, in part, that the district court did not have jurisdiction over the case because the Makinens had failed to give notice to the director and the attorney general as was required by § 27-14-105. On November 30, 1993, the Makinens served the director and the attorney general with copies of the complaint.

In order to determine whether the district court had jurisdiction over this case, we must construe the relevant portions of § 27-14-105. In construing a statute, we must determine whether the statute is clear or ambiguous. "[A] statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability." Allied-Signal, Inc. v. Wyoming State Board of Equalization, 813 P.2d 214, 220 (Wyo.1991). "[A] statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations." 813 P.2d at 219-20. "[W]hether an ambiguity exists in a statute is a matter of law to be determined by the court." 813 P.2d at 220. If the language of a statute is clear and unambiguous, we apply the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Soles v. State, 809 P.2d 772, 773 (Wyo.1991).

The Makinens contend that the district court had jurisdiction over the case because they served the complaint on the director and the attorney general in compliance with the statutory notice requirement. They assert that § 27-14-105 is ambiguous with respect to when the complaint must be served upon the director and the attorney general, and they argue that service of the complaint is not required in order for the district court to obtain jurisdiction over the case. PM P.C. and Mr. Larscheid maintain that the statute is not ambiguous. They contend that, pursuant to § 27-14-105, service must be made upon the director and the attorney general before or concurrently with the filing of an action in order for the district court to acquire...