McKennan v. Newman

• Decision Date: 11 December 1992
• Docket Number: No. 91-273,91-273
• Parties: Susan W. McKENNAN, Personal Representative of the Estate of Terry Don McKennan, Deceased, Appellant (Plaintiff), v. Richard C. NEWMAN, Ron Rabe, Gary Senier, Terry Caywood, John Doe, et al., Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 602

843 P.2d 602

Susan W. McKENNAN, Personal Representative of the Estate of Terry Don McKennan, Deceased, Appellant (Plaintiff), v. Richard C. NEWMAN, Ron Rabe, Gary Senier, Terry Caywood, John Doe, et al., Appellees (Defendants).

No. 91-273.

Supreme Court of Wyoming.

Dec. 11, 1992.

James P. Castberg, Sheridan, Robert R. Rose, Jr., Cheyenne, and Gary L. Shockey, Jackson, for appellant.

Kim D. Cannon and Anthony T. Wendtland of Burgess, Davis, Carmichael & Cannon, Sheridan, for appellees.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT and GOLDEN, JJ.

MACY, Chief Justice.

Susan W. McKennan, personal representative of the estate of Terry Don McKennan, appeals from the district court's order dismissing the wrongful death action which she filed against her deceased husband's co-employees.

We reverse and remand.

Stated most simply, the issue on appeal is: Whether the district court's dismissal order must be reversed in light of Mills v. Reynolds, 837 P.2d 48 (Wyo.1992).

Mr. McKennan died in a tragic industrial accident which occurred at Wyoming Sawmills, Inc. on September 22, 1989. Although no one witnessed the accident, circumstances indicated that Mr. McKennan either fell or was drawn into a wood chip auger as he attempted to unclog it. Mr. McKennan suffered massive body trauma and died almost instantaneously. McKennan v. Wyoming Sawmills, Inc., 816 P.2d 1303, 1304 (Wyo.1991).

Ms. McKennan filed a wrongful death action against Wyoming Sawmills, Inc. on October 11, 1990. She alleged that her husband's employment with Wyoming Sawmills, Inc. was unlawful because he was required to work under circumstances which violated the Wyoming Occupational Health and Safety Act, Wyo.Stat. §§ 27-11-101 to -114 (1991 & Supp.1992). Ms. McKennan reasoned that, because her husband's employment was unlawful, the exclusive remedy provisions in Article 10, Section 4 of the Wyoming Constitution and Wyo.Stat. § 27-14-104(a) (1991) barred the action. We affirmed, holding "that the existence of OHSA violations does not render otherwise lawful employment unlawful." McKennan, 816 P.2d at 1304 (citing Mauch v. Stanley Structures, Inc., 641 P.2d 1247, 1251 (Wyo.1982)).

On September 20, 1991, shortly after our decision in McKennan, Ms. McKennan filed a wrongful death action against her husband's co-employees: Richard Newman, the general manager; Ron Rabe, the sawmill supervisor; Gary Senier, the shift supervisor; and Terry Caywood, the immediate supervisor. This complaint's substantive allegations were essentially identical to those in the complaint filed against Wyoming Sawmills, Inc. Ms. McKennan alleged that her husband's death was proximately caused by the co-employees' operation of the sawmill in violation of OHSA regulations. She further asserted that, because of the co-employees' negligent operation, they were "not acting within the scope of their employment" and thus not statutorily immune from suit under § 27-14-104(a). ¹

In response, the co-employees moved to have Ms. McKennan's complaint dismissed pursuant to W.R.C.P. 12(b)(6). Their motions to dismiss were supported by supplemental materials from McKennan and by Richard Newman's affidavit. The co-employees' position was that they were absolutely immune from suit under § 27-14-104(a) as they were acting "within the scope of their employment" at all times relevant to Mr. McKennan's death. In support of this position, the co-employees relied upon the holding in McKennan to argue that OHSA violations alone were an insufficient reason to deny the immunity afforded by the Wyoming Worker's Compensation Act.

Following a hearing held on October 28, 1991, the district court entered an order on November 6, 1991, granting the co-employees' motions to dismiss. The district court determined, after considering the motions, legal memoranda, supplemental materials, affidavit, and counsels' arguments, that Ms. McKennan's wrongful death action against the co-employees was indeed barred by § 27-14-104(a) of the Wyoming Worker's Compensation Act. This appeal followed.

Under ordinary circumstances, our threshold issue would be whether the co-employees' motions to dismiss were converted to motions for a summary judgment by the district court's consideration of matters outside of the pleadings. See generally Cranston v. Weston County Weed and Pest Board, 826 P.2d 251 (Wyo.1992), and Torrey v. Twiford, 713 P.2d 1160 (Wyo.1986). If we were to determine that no conversion occurred, we would then address whether, under the applicable standard of review, the district court erred in determining that Ms. McKennan's complaint failed to state a claim upon which relief could be granted in light of § 27-14-104(a). Alternatively, if we were to determine that conversion occurred, we would then address whether, under the applicable standard of review, the district court erred in determining that Ms. McKennan failed to create an issue of material fact which would preclude an entry of a judgment as a matter of law under § 27-14-104(a).

The need to engage in the analysis outlined above has been obviated, however, by Mills. ² In Mills, a majority of this Court agreed that the statutory grant of co-employee immunity contained in § 27-14-104(a) violated one or more provisions of the Wyoming Constitution. Mills, 837 P.2d at 49, 55. The Mills decision was given effect prospectively and retroactively to July 1, 1987 (the effective date of § 27-14-104(a)). Id. at 55-56. As a result of the retroactive application of Mills, the district court's dismissal order, which was premised upon the co-employee immunity provided by § 27-14-104(a), cannot stand. Consequently, we reverse and remand this case, directing that Ms. McKennan be allowed to amend her complaint to state a cause of action, if any, under the law as it now stands.

Reversed and remanded.

THOMAS, J., files a specially concurring opinion.

THOMAS, Justice, concurring specially.

I agree that the summary judgment must be reversed in this case. In my view, however, the reversal appropriately should be premised upon procedural grounds only. Consequently, I cannot join in the ground for the reversal that is adopted in the opinion of the court.

The procedural facts that are pertinent include the fact that motions to dismiss the plaintiff's complaint for wrongful death on the ground that it failed to state a claim upon which relief could be granted were filed by the several defendants on October 10, 1991 and October 11, 1991. On October 16, 1991, the case was set for "[h]earing on Defendants' Motions to Dismiss on the 28th day of October, 1991 * * *." Relying upon Fuss v. Franks, 610 P.2d 17 (Wyo.1980), three of the defendants, on October 17, 1991, designated certain judicially noticeable materials in support of their Motion to Dismiss. On October 18, 1991, without explaining its purpose, the defendants filed and personally served the affidavit of Richard C. Newman, one of the defendants. On November 6, 1991, the court entered an Order Granting Motion to Dismiss, following the hearing held on October 28, 1991, in which the court said:

[A]nd the Court having considered the Designation of Supplemental Information in Support of Motion to Dismiss, and the Affidavit of Richard C. Newman filed on behalf of the Defendants; * * *;

IT IS THEREFORE, HEREBY ORDERED, ADJUDGED AND DECREED by the Court that the Defendants', RICHARD C. NEWMAN, RON RABE, GARY SENIER, and TERRY CAYWOOD, Motion to Dismiss is granted on the grounds that the action against these co-employees is barred by the Wyoming Worker's Compensation Act, Wyo.Stat. § 27-14-101, et seq. (June, 1987 Repl. and Cum.Supp.1990), and there being no just reason for delay in the entry of a final order as to the Defendants RICHARD C. NEWMAN, RON RABE, GARY SENIER, and TERRY CAYWOOD, the action is dismissed. (Emphasis added.)

It is clear from its order that the trial court considered the affidavit of Richard C. Newman, as well as the materials offered for judicial notice. That triggered the conversion language of Wyo.R.Civ.P. 12(b) which provided, in pertinent part:

If, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (Emphasis added.)

Certainly, conversion to a summary judgment proceeding occurred in this instance.

This court has taken notice of conversion on appeal in previous cases. See Brebaugh v. Hales, 788 P.2d 1128, 1133-34 (Wyo.1990); Kirby Bldg. Systems v. Independence, Etc., 634 P.2d 342, 344-45 (Wyo.1981); Wyoming Ins. Dept. v. Sierra Life Ins. Co., 599 P.2d 1360, 1362 (Wyo.1979).

Stalkup v. State Dept. of Env. Quality, 838 P.2d 705, 709 (Wyo.1992).

This case is substantially captured by what the court said in Shriners Hospital for Crippled Children, Inc. v. First Security Bank, 835 P.2d 350, 355 (Wyo.1992):

In Kimbley v. City of Green River, 642 P.2d 443, 446 (Wyo.1982), we stated that conversion under Rule 12(b) cannot be accomplished unless the nonmoving party has (1) notice of the court's intent to convert the motion to one for summary judgment, and (2) an opportunity to submit rebuttal materials under Rule 56. We elaborated on the first requirement in Torrey v. Twiford, 713...