Rawlinson v. BOPU, 00-36.

• Decision Date: 23 January 2001
• Docket Number: No. 00-36.,00-36.
• Citation: 2001 WY 6,17 P.3d 13
• Parties: Barbara RAWLINSON, Aaron Rawlinson, and Adrienne Rawlinson and Kristen Rawlinson, minors, by and through their next best friend and mother, Barbara Rawlinson, Appellants, (Plaintiffs), v. CHEYENNE BOARD OF PUBLIC UTILITIES, Appellee (Defendant).
• Court: Wyoming Supreme Court

17 P.3d 13

2001 WY 6

Barbara RAWLINSON, Aaron Rawlinson, and Adrienne Rawlinson and Kristen Rawlinson, minors, by and through their next best friend and mother, Barbara Rawlinson, Appellants, (Plaintiffs), v. CHEYENNE BOARD OF PUBLIC UTILITIES, Appellee (Defendant).

No. 00-36.

Supreme Court of Wyoming.

January 23, 2001.

Representing Appellants: Carol K. Watson and Bernard Q. Phelan of Phelan Watson Law Office, Cheyenne, WY.

Representing Appellee: Deborah Ford Mincer of Murane & Bostwick, LLC, Cheyenne, WY.

Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL and KITE, JJ.

KITE, Justice.

[¶ 1] The sole issue before this Court is whether the district court properly granted summary judgment in favor of the Cheyenne Board of Public Utilities (the BOPU) concluding that the appellants' claim was time barred under the Wyoming Governmental Claims Act statute of limitations. The order granting the BOPU's motion for summary judgment is affirmed.

ISSUES

[¶ 2] The appellants present the following issue for our review:

Whether the district court abused its discretion in finding that the appellants' cause of action accrued no later than June 23, 1995, rather than July 22, 1998, for purposes of applying the two-year statute of limitation, Wyo.Stat. § 1-39-113, against the Board of Public Utilities.

The BOPU lists the issues as follows:

1. Whether the District Court properly granted summary judgment in favor of the Board of Public Utilities based on the Governmental Claims Act statute of limitations?

2. In the alternative, whether the record establishes that summary judgment should be affirmed because the Plaintiffs produced no admissible evidence of negligence by the Board of Public Utilities?

3. Whether sanctions should be ordered in light of the Appellants' failure to designate a record and the pursuit of this frivolous appeal?

FACTS

[¶ 3] Before Barbara Rawlinson purchased a home in Cheyenne, a home inspector issued a written report dated December 16, 1994, regarding a structural evaluation of the home. The report specified in pertinent part: "soil in the crawl space area was wet. A positive, `no-leak' condition cannot be established because of the wet area." Following the purchase of the home, Ms. Rawlinson testified that she was aware of water damage as early as June 1995 and continued to investigate the water in the crawl space. She engaged two engineers to inspect the property, and each engineer issued a report. The first report was issued on June 23, 1995, and the second report was issued on July 9, 1997. The engineers reported that the home had property damage due to water seepage. In addition, an employee with the BOPU visited Ms. Rawlinson's home in 1997 and noted wet dirt in the crawl space. The BOPU received a report that the home had water seepage problems on and off for at least two years, and, as a result, the BOPU performed tests to check for leaks.

[¶ 4] Three and a half years later, Ms. Rawlinson presented an itemized statement to the BOPU for its negligence in failing to properly maintain a fire hydrant and the resulting damage to her home. The following day, December 11, 1998, she filed a complaint against the BOPU and several other defendants, alleging various causes of action. The BOPU filed a motion for summary judgment claiming the two-year limitation under the Wyoming Governmental Claims Act had expired and it had not committed an act of negligence. The district court granted the BOPU'S motion for summary judgment on the basis of the statute of limitations. It determined that Ms. Rawlinson discovered her cause of action on June 23, 1995, the date she became aware of property damage. The district court concluded that Ms. Rawlinson's claim exceeded the two-year limitation and the BOPU was entitled to a judgment as a matter of law. It declined to rule on the merits of the underlying negligence claim. Ms. Rawlinson appeals to this Court.

STANDARD OF REVIEW

[¶ 5] We review a summary judgment in the same light as the district court, using the same materials and following the same standards. Lieberman v. Wyoming.com LLC, 11 P.3d 353, 356 (Wyo.2000). We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. Id. The review of a grant of summary judgment involving a question of law is de novo. Id.

DISCUSSION

[¶ 6] The determinative issue in this case is whether discovery of the claim occurred when the damage was discovered or when a particular alleged tortfeasor was discovered. Ms. Rawlinson argues that the date of discovery was the date she realized the water could be coming into her basement from the BOPU city water supply. According to Ms. Rawlinson, the summer of 1998 had been unusually dry, and she had ceased to water her lawn in an effort to determine the cause of her flooding problems. On July 22, 1998, the sump pump, which Ms. Rawlinson had installed to remove water from the basement, suddenly quit working. The structural engineer stated that it was unusual for a sump pump to abruptly stop pumping unless a constant source of water flooding the basement had simply dried up, such as a leak in the city water system. Ms. Rawlinson contends that July 22, 1998, is the date of discovery as this was the date she first suspected the BOPU was responsible for her standing water problem. As a result, she insists that she complied with the applicable statute of limitations.

[¶ 7] The BOPU argues that the date of discovery was June 1995 and Ms. Rawlinson's admission that she was aware of property damage in June 1995 should result in a bar to her claim under the statute of limitations. We agree.

[¶ 8] It is undisputed that the Wyoming Governmental Claims Act applies in this case. The statutory claims procedure under the Wyoming Governmental Claims Act provides as follows:

(a) No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:

(i) Not reasonably discoverable within a two (2) year period; or

(ii) The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence.

Wyo.Stat.Ann. § 1-39-113(a) (LEXIS 1999). Wyoming precedent is unequivocal in holding that failure to file a claim with the governmental entity within the two-year period provided in § 1-39-113(a) is an absolute bar to suit. Davis v. City of Casper, 710 P.2d 827, 829 (Wyo.1985).

[¶ 9] Statutes of limitations are pragmatic devices to save courts from stale claim litigation. Duke v. Housen, 589 P.2d 334, 340 (Wyo.),cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979). Such statutes represent legislative and public policy controlling the right to litigate. Id. They are arbitrary by their very nature, and we must give full force to the applicable statutes without regard to the merits of the particular claim. Id. When a statute of limitations is being considered, the nature and extent of the injury and the amount of money damages involved are only significant in the effect they may have on when the cause of action arose and when the time expired for pursuing the applicable judicial remedy. 589 P.2d at 340.

[¶ 10] Settled Wyoming precedent confirms that Wyoming is a discovery state. Amoco Production Company v. EM Nominee Partnership Company, 2 P.3d 534, 542 (Wyo.2000). The discovery rule delays the accrual of the cause of action in cases in which the injury or damage is not immediately apparent. Nowotny v. L & B Contract Industries, Inc., 933 P.2d 452, 456 (Wyo. 1997). This rule protects an injured person who would otherwise be barred from bringing an action simply because he is unaware of an injury. 933 P.2d at 457.

[¶ 11] In Waid v. State by and through Department of Transportation, 996 P.2d 18 (Wyo.2000), this Court addressed the plain meaning of the Wyoming Governmental Claims Act. We said the plain language of the statute measures the time for filing a claim not from the date damage occurs but from the date on which the "act, error or omission" occurs or when a claimant discovers it. 996 P.2d at 25. The facts in Waid involved two separate incidences of flooding, which caused damage to the claimants' property. Id. The claimants were clearly on notice that an "act, error or omission" occurred on the date of the first flood; however, they failed to make a claim at that time. The claimants argued that, although the damage arising out of the initial flood was time barred, the recurrence of the second flood started the statutory period to begin again. Id. We held the statute of limitations began to run when the claimant discovered the initial flood and said: "The situation had not changed by 1993, and although that flood caused additional damage, there was no new `act, error or omission,' or a fresh discovery of such that would cause the statutory time period to start anew." Id.

[¶ 12] The statute begins to run from the first time claimants are chargeable with information which should lead them to believe they have a claim. The occurrence of a subsequent incident does not extend the statutory period. Absent such a conclusion, in cases where there is an ongoing condition, such as water seepage, there would be no means to determine when the statute of limitations should commence. When Waid is applied to the facts in this case, Ms. Rawlinson was chargeable with knowledge of an "act, error or omission" when she discovered property damage. Her claimed discovery in 1998 that the BOPU might be legally responsible is not a new "act,...