Moses Inc. v. Moses, S-21-0170

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtFOX, Chief Justice.
Citation509 P.3d 345
Parties MOSES INC., a Wyoming corporation, Appellant (Plaintiff), v. Neva Larue MOSES and Lori Hall, as Personal Representative of the Estate of Neva Larue Moses and Trustee for the benefit of the Neva Larue Moses Living Trust, Appellees (Defendants).
Docket NumberS-21-0170
Decision Date05 May 2022

509 P.3d 345

MOSES INC., a Wyoming corporation, Appellant (Plaintiff),
Neva Larue MOSES and Lori Hall, as Personal Representative of the Estate of Neva Larue Moses and Trustee for the benefit of the Neva Larue Moses Living Trust, Appellees (Defendants).


Supreme Court of Wyoming.

May 5, 2022

Representing Appellant: Greggory J. Savage (admitted pro hac vice) and Gregory S. Roberts (admitted pro hac vice), Ray Quinney & Nebeker P.C., Salt Lake City, Utah; Carrie L. Sisson, Sisson Law Firm, LLC, Sheridan, Wyoming. Argument by Mr. Roberts.

Representing Appellee: Judith Studer, Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming. Argument by Ms. Studer.


FOX, Chief Justice.

¶1] Neva Larue Moses was driving a vehicle owned and insured by Moses Inc. when she negligently collided with another vehicle, killing her and the other driver. Moses Inc.’s insurer settled the resulting negligence claim, and then canceled Moses Inc.’s policy, forcing it to purchase a policy from another carrier at a much higher premium, and with lower coverage rates and higher deductibles. Moses Inc. brought a negligence claim against the Estate of Neva Larue Moses (the Estate) and the Neva Larue Moses Living Trust (the Trust) for its increased insurance costs. The district court dismissed the amended complaint for failure to state a claim, and we affirm.


[¶2] Moses Inc. raises a single issue on appeal, which we rephrase as:

Whether one who borrows a vehicle owes the owner a duty of care to protect it from increased insurance costs.

[¶3] The Trust raises an additional issue, which it claims is jurisdictional. We rephrase that issue as:

Whether Moses Inc.’s failure to bring its claim directly against the Estate rather than against the Trust deprives this Court of jurisdiction.


[¶4] Ms. Moses was a former employee and shareholder of Moses Inc., and Moses Inc. permitted her to drive a vehicle owned and insured by it. On April 9, 2020, Ms. Moses was driving a Moses Inc. vehicle near Rock Springs, Wyoming when she attempted to drive east on a service road, but instead entered an off ramp for the westbound lane of Interstate 80. She collided head-on with a westbound vehicle. Both drivers were killed immediately.

[¶5] Moses Inc.’s insurer paid millions to settle the negligence claim resulting from Ms. Moses's negligence and then canceled Moses Inc.’s policy. Moses Inc. obtained insurance through a different carrier, but the new policy came with lower coverage rates and higher deductibles, increasing Moses Inc.’s annual premium by approximately $200,000.

[509 P.3d 349

[¶6] Moses Inc. filed an amended complaint against the Estate and the Trust seeking $15,000 for the loss of its vehicle as well as damages for its increased insurance costs. The Trust moved to dismiss on grounds that no duty was owed to Moses Inc., and the economic loss rule barred Moses Inc.’s claim. The court dismissed the amended complaint for failure to state a claim.1 It concluded: "This claim is too remote and not a reasonably foreseeable consequence in a duty-risk analysis for the tort of negligence. Public policy would not be served by allowing recovery of Plaintiff's increased premiums."

[¶7] The district court further ruled that if it had not found the question of duty dispositive, it would have dismissed based on application of the economic loss rule "and/or for lack of subject matter jurisdiction."2 Moses Inc. timely appealed the order dismissing its amended complaint.3


[¶8] "Although dismissal is a drastic remedy which should be granted sparingly, a motion to dismiss is the proper method for testing the legal sufficiency of the allegations and will be sustained when the complaint shows on its face that the plaintiff is not entitled to relief." Whitham v. Feller , 2018 WY 43, ¶ 13, 415 P.3d 1264, 1267 (Wyo. 2018) (quoting Bush Land Dev. Co. v. Crook Cnty. Weed & Pest Control Dist. , 2017 WY 12, ¶ 7, 388 P.3d 536, 539 (Wyo. 2017) ) (internal quotation marks omitted).

We review orders granting a motion to dismiss under Rule 12(b)(6) de novo. Craft v. State ex rel. Wyo. Dep't of Health , 2020 WY 70, ¶ 9, 465 P.3d 395, 399 (Wyo. 2020). "We employ the same standards and examine the same materials as the district court: we accept the facts alleged in the complaint ... as true and view them in the light most favorable to the non-moving party." Id . (quoting Moose Hollow Holdings, LLC v. Teton Cty. Bd. of Cty. Comm'rs , 2017 WY 74, ¶ 20, 396 P.3d 1027, 1033 (Wyo. 2017) ). Dismissal is appropriate where it is certain from the face of the complaint that the plaintiff cannot assert any fact that would entitle him to relief. Craft , 2020 WY 70, ¶ 9, 465 P.3d at 399 (citing Dowlin v. Dowlin , 2007 WY 114, ¶ 6, 162 P.3d 1202, 1204 (Wyo. 2007) ; W.R.C.P. 12(b)(6) ).

Dockter v. Lozano , 2020 WY 119, ¶ 6, 472 P.3d 362, 364 (Wyo. 2020).


¶9] The Trust challenges the ability of Moses Inc. to file its action directly against the Trust rather than against the Estate and claims this issue is jurisdictional. We will therefore address that question before turning to the question of whether Ms. Moses owed Moses Inc. a duty to protect it from

[509 P.3d 350

increased insurance costs. See Devon Energy Prod. Co., LP v. Grayson Mill Operating, LLC , 2020 WY 28, ¶ 10, 458 P.3d 1201, 1205 (Wyo. 2020) ("If the district court lacked subject matter jurisdiction, this Court has jurisdiction on appeal, not on the merits, but only as to the jurisdictional issue.").

I. The Trust's argument that Moses Inc. should have filed its amended complaint against the Estate rather than against the Trust is not jurisdictional, and because it was neither raised below nor shown to be fundamental, we will not consider it on appeal.

[¶10] The Trust contends that Moses Inc.’s amended complaint was not properly filed against it and should have instead been brought against the Estate. It further contends that since Moses Inc. did not first file its claim with the Estate, as statutorily required, the district court was without jurisdiction over Moses Inc.’s amended complaint. "We review whether a court has jurisdiction over a case de novo." Rosen v. State , 2022 WY 16, ¶ 7, 503 P.3d 41, 44 (Wyo. 2022) (quoting Interest of RR , 2021 WY 85, ¶ 53, 492 P.3d 246, 261 (Wyo. 2021) ).

[¶11] Moses Inc.’s amended complaint contained no allegation that it had filed a claim for its damages with the Estate. In fact, the record suggests that the Estate had not yet been opened. Thus, if at this point Moses Inc.’s action was against the Estate, the Trust would be correct that the district court would have lacked subject matter jurisdiction based on Moses Inc.’s failure to comply with the statutory claims procedure. See Wyo. Stat. Ann. § 2-7-706 and 717 (LexisNexis 2021); In re Estate of Graves , 2011 WY 165, ¶ 14, 267 P.3d 1070, 1073 (Wyo. 2011) ; Matter of Mora's Estate , 611 P.2d 842, 850 (Wyo. 1980). This action is not, however, against the Estate; it is against the Trust. Therefore, the question is not whether the jurisdictional prerequisites were met for bringing a claim against the Estate, but instead whether Moses Inc. may bring an action directly against the Trust. That is a fair question, but it is not jurisdictional. See Estate of Read v. A.D.K. Properties , 766 So.2d 393, 394 (Fla. Dist. Ct. App. 2000) ; Tobin v. Damian , 723 So.2d 396, 397 (Fla. Dist. Ct. App. 1999) (both upholding dismissals of claims made directly against trusts not on jurisdictional grounds but for failure to state a claim).

[¶12] Since this argument is not jurisdictional, we will not consider it on appeal unless it was first made to the district court or is of a fundamental nature. See Interest of AA , 2021 WY 18, ¶ 10, 479 P.3d 1252, 1256 (Wyo. 2021) (holding that this Court "will not consider an issue raised for the first time on appeal" unless it is jurisdictional or "of such a fundamental nature that it must be considered"). The record on appeal does not reflect that Moses Inc. made this argument to the district court, and it has not shown the issue is fundamental. We therefore will not consider it.4

II. Ms. Moses did not owe Moses Inc. a duty to protect it from increased insurance costs.

[¶13] The elements of a negligence claim are "(1) the defendant owed the plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the duty of care; (3) the breach proximately caused injury to the plaintiff; and (4) the injury is compensable by money damages." Cornella v. City of Lander , 2022 WY 9, ¶ 25, 502 P.3d 381, 387 (Wyo. 2022) (quoting Miller v. Sweetwater Cnty. Sch. Dist. #1 , 2021 WY 134, ¶ 15, 500 P.3d 242, 246-47 (Wyo. 2021) ). "Duty and breach of duty must be established before addressing causation and the tortfeasor's responsibility for any harm suffered." Lucero v. Holbrook , 2012 WY 152, ¶ 7, 288 P.3d 1228, 1232 (Wyo. 2012) (citing

509 P.3d 351

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