Robinson v. Pacificorp

• Decision Date: 15 September 2000
• Docket Number: No. 98-365.,98-365.
• Citation: 10 P.3d 1133
• Parties: Linda ROBINSON, individually, and as Personal Representative of the Estate of Michael Paul Robinson, a/k/a Michael P. Robinson, deceased, Appellant (Plaintiff), v. PACIFICORP, an Oregon corporation; Olin Corp., a Virginia corporation; Bayer Corp., an Indiana corporation; LeRoy Rufinni, an individual; William Rossetti, an individual; Steve Wotruba, an individual; Greg Heger, an individual; Rick Wooley, an individual; Don Vincent, an individual; Bill Bolinder, an individual; Ladd Poor, an individual; and Jeff Walsh, an individual, Appellees (Defendants).
• Court: Wyoming Supreme Court

10 P.3d 1133

Linda ROBINSON, individually, and as Personal Representative of the Estate of Michael Paul Robinson, a/k/a Michael P. Robinson, deceased, Appellant (Plaintiff), v. PACIFICORP, an Oregon corporation; Olin Corp., a Virginia corporation; Bayer Corp., an Indiana corporation; LeRoy Rufinni, an individual; William Rossetti, an individual; Steve Wotruba, an individual; Greg Heger, an individual; Rick Wooley, an individual; Don Vincent, an individual; Bill Bolinder, an individual; Ladd Poor, an individual; and Jeff Walsh, an individual, Appellees (Defendants).

No. 98-365.

Supreme Court of Wyoming.

September 15, 2000.

Representing Appellant: Tim Newcomb and Maynard Grant of Grant & Newcomb, Laramie, Wyoming; Roger Griffin, Logan, Utah; and Rodney Jack Reynolds of Gregory, Johnson & Barton, P.C., Houston, Texas.

Representing Appellees: Richard E. Day of Williams, Porter, Day and Neville, Casper, Wyoming; H. James Clegg, Salt Lake City, Utah; Dennis Lancaster of Phillips and Lancaster, Evanston, Wyoming; Joe M. Teig, P.C. of Holland & Hart, Jackson, Wyoming; and Mark G. Zellmer of Husch & Eppenberger, LLC, St. Louis, Missouri.

Before LEHMAN, C.J., and THOMAS, MACY¹, GOLDEN, and HILL, JJ. MACY, Justice.

Appellant Linda Robinson, individually and as the personal representative of the Estate of Michael Paul Robinson, appeals from an order which dismissed her wrongful death action against Appellees Pacificorp, Olin Corp., Bayer Corp., LeRoy Rufinni, William Rossetti, Steve Wotruba, Greg Heger, Rick Wooley, Don Vincent, Bill Bolinder, Ladd Poor, and Jeff Walsh under W.R.C.P. 12(b)(6).

We affirm.

ISSUES

Robinson presents three issues to this Court:

ISSUE ONE:

Whether the district court erred in holding that Plaintiff's cause of action is barred by W.S. § 1-38-102(d)'s two-year statute of repose or condition precedent in that, as applied herein, the said statute is unconstitutional as violating Article I, Section 8 of the Wyoming Constitution.

ISSUE TWO:

Whether the district court erred in dismissing this case where the Plaintiff's pleadings allege concealment of the cause of Plaintiff's husband's death by Defendants, sufficient to toll even an absolute two-year statute of repose.

ISSUE THREE:

Whether the District Court erred in failing to apply the four-year discovery statute of limitations from W.S. § 1-3-105 applicable to a survival cause of action under W.S. § 1-4-101.

FACTS

Robinson's husband, Michael Paul Robinson, was employed by Pacific Power and Light from 1982 to 1987 at the Jim Bridger Power Plant in Sweetwater County. Robinson alleges that, during the course of his employment, her husband was exposed to lethal levels of hydrazine. She contends that he began experiencing pain and suffering in July of 1987 and ultimately died on November 20, 1987, as a result of his exposure to this chemical.

Robinson filed a complaint against the appellees on November 21, 1997. She filed an amended complaint on January 9, 1998, wherein she asserted that she did not discover the cause of her husband's death until December of 1995.

The appellees filed motions to dismiss, asserting that Robinson's wrongful death claim was time barred. In her response to these motions, Robinson maintained that the allegations in her complaints gave rise to an action arising under the wrongful death statutes, Wyo. Stat. Ann. §§ 1-38-101 and 1-38-102 (LEXIS 1999), or alternatively to a negligence claim. She contended that the negligence claim survived her husband's death under the survival statute, Wyo. Stat. Ann. § 1-4-101 (LEXIS 1999).

Before the hearing was held on the appellees' motions, the Wyoming Supreme Court issued its decision in Corkill v. Knowles, 955 P.2d 438 (Wyo.1998), wherein it held that the two-year limitation period contained within the wrongful death statutes is a condition precedent as opposed to a statute of limitation which can be tolled by the discovery rule. 955 P.2d at 443. Because the decision in Corkill precluded a wrongful death claim, Robinson argued that her claim could still be brought under the survival statute.

A hearing was held, and the district court granted the appellees' motions to dismiss, finding that "a personal injury action which subsequently resulted in death could only be maintained as a wrongful death action" and that this Court's Corkill decision precluded recovery by Robinson. Robinson appeals to this Court.

STANDARD OF REVIEW

When reviewing a W.R.C.P. 12(b)(6) dismissal, this Court accepts all facts stated in the complaint as being true and views them in the light most favorable to the plaintiff. Bird v. Rozier, 948 P.2d 888, 892 (Wyo.1997). Dismissal is a drastic remedy and is sparingly granted. Rissler & McMurry Co. v. State, 917 P.2d 1157, 1160 (Wyo. 1996),cert. denied, 519 U.S. 1091, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997). Nevertheless, we will sustain a W.R.C.P. 12(b)(6) dismissal when it is certain from the face of the complaint that the plaintiff cannot assert any set of facts that would entitle her to relief. Id.

DISCUSSION

Neither of Robinson's first two issues was raised in the district court. We generally will not consider issues which are raised for the first time on appeal unless they are jurisdictional issues or issues of such a fundamental nature that they must be considered. WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo.1998).

A. Tolling the Two-Year Condition Precedent

A party is required to plead a fraudulent concealment cause of action with particularity. Ahearn v. Anderson-Bishop Partnership, 946 P.2d 417, 424 (Wyo.1997); W.R.C.P. 9(b). Robinson's claim that the two-year condition precedent contained within the wrongful death statutes should be tolled because the appellees "concealed and misrepresented material facts from [Robinson's] husband regarding the dangers associated with exposure to hydrazine" was not pleaded with sufficient particularity to enable us to conclude that the issue was raised below. We, therefore, decline to address that issue.

B. "Open Courts" Provision

Robinson's "open courts" issue, although not raised below, involves a fundamental right of which we will take cognizance. Mills v. Reynolds, 837 P.2d 48, 54 (Wyo.1992). She charges that the district court's dismissal of the complaint, based upon a strict application of the two-year condition precedent set forth in § 1-38-102(d) of the wrongful death statutes, violates the "open courts" provision of Article 1, Section 8 of the Wyoming Constitution, which provides in relevant part: "All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay." She reasons that the application of the absolute two-year time limit of the wrongful death law foreclosed her legal remedy before she had knowledge of her claim. She asserts, therefore, that the statutory provision must necessarily yield to the constitutional provision.

In her treatment of this issue, Robinson has not undertaken an appropriate constitutional analysis of the meaning of the "open courts" provision and has made no effort to discern the distinct purposes behind that provision. Her treatment falls far short of the sound historical research and rigorous constitutional analysis that form the necessary predicate to principled constitutional interpretation. See, e.g., Dworkin v. L.F.P., Inc., 839 P.2d 903, 909-12 (Wyo.1992)

(analysis of Article 1, Section 20 of the Wyoming Constitution). There have been scholarly examinations of the "open courts" provision which appears, in one form or another, in most of the state constitutions. See, e.g., William C. Koch, Jr., Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L.Rev. 333 (1997); Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L.Rev. 1279 (1995); David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197 (1992); John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L.Rev. 237 (1991) (appendix is compilation of the provisions found in thirty-eight state constitutions); and Ruth A. Mickelsen, The Use and Interpretation of Article I, Section Eight of the Minnesota Constitution 1861-1984, 10 Wm. Mitchell L.Rev. 667 (1984). As the law review articles reveal, state courts have been active in interpreting the "open courts" provision in a variety of contexts and "have adopted an equally daunting variety of remedy guarantee interpretations." Schuman, supra, at 1203. A variety of interpretations may be found within a single court. See, e.g., Craftsman Builder's Supply, Inc. v. Butler Manufacturing Company, 974 P.2d 1194 (Utah 1999); Estate of Makos by Makos v. Wisconsin Masons Health Care Fund, 211 Wis.2d 41, 564 N.W.2d 662 (1997),

overruled by Aicher by LaBarge v. Wisconsin Patients Compensation Fund, 613 N.W.2d 849 (Wis. 2000).

Forgoing appropriate constitutional analysis, Robinson supports her position on the issue presented by referring to two inapplicable Wyoming cases and two inapplicable Texas cases. Phillips v. ABC Builders, Inc., 611 P.2d 821 (Wyo.1980), was not a wrongful death case but rather involved a statute of repose in a homeowner's action against a builder for negligence and breach of implied warranty of fitness in the construction of footings for a house. State ex rel. Wyoming Workers' Compensation Division v. Halstead, 795 P.2d 760 (Wyo.1990), was also not a wrongful death case but instead involved a statute of limitations in a worker's compensation case in which benefits were awarded to a child who had been born out of wedlock after his father was killed in a work-related accident. The two Texas cases were also not wrongful death cases but rather involved a statute of limitations in medical negligence litigation. Texas Medical Liability...