Wetering v. Eisele, 1

• Decision Date: 15 June 1984
• Docket Number: No. 83-119,No. 1,1,83-119
• Citation: 682 P.2d 1055
• Parties: Darel Lloyd WETERING, Executor of the Estate of Daniel Ray Wetering, Deceased, Appellant (Plaintiff), v. Sylvia R. EISELE, and School Districtof Laramie County, Wyoming, jointly and severally, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1055

682 P.2d 1055

Darel Lloyd WETERING, Executor of the Estate of Daniel Ray Wetering, Deceased, Appellant (Plaintiff), v. Sylvia R. EISELE, and School District No. 1 of Laramie County, Wyoming, jointly and severally, Appellees (Defendants).

No. 83-119.

Supreme Court of Wyoming.

June 15, 1984.

Vincent A. Ross of Ross & Ross, Cheyenne, for appellant.

Ward A. White of Guy, Williams, White & Argeris, Cheyenne, for appellees.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN, and CARDINE, JJ.

THOMAS, Justice.

The sole question presented by this appeal is whether a brother and the sisters of a decedent can participate in a wrongful death action and establish their respective damages. We must determine whether the brothers and sisters of a decedent are included within the phrase "every person for whose benefit such action is brought" found in § 1-38-102, W.S.1977 (Cum.Supp.1983). The district court, with some reluctance, held that they were not included because of dictum in this court's opinion in Saffels v. Bennett, Wyo., 630 P.2d 505 (1981). We reverse the decision of the district court, and hold that brothers and sisters of a decedent can be included within the pertinent statutory phrase when a wrongful death action is brought and the circumstances include them within the class of persons who may share in the intestate distribution of the decedent's estate.

To resolve the issue in this appeal we must decide whether, despite what this court said in Saffels v. Bennett, supra, surviving brothers and sisters may be included among those persons for whose benefit a wrongful death action is brought. If so, they have an opportunity to establish their respective damages in accordance with § 1-38-102(c), W.S.1977 (Cum.Supp.1983). The appellant contends vigorously that the legislature did not intend to foreclose such persons from being included among those persons for whose benefit the wrongful death action is brought. The appellees point to the language of Saffels v. Bennett and their interpretation of the statutory history relating to this subject, and urge the propriety of the district court's decision.

The material facts are not complex. Daniel Ray Wetering was killed as a result of injuries sustained in a collision between his motorcycle and a school bus. He was not married and had no children. He was survived by his father, mother, four sisters and a brother. His father, Darel Lloyd Wetering, was appointed administrator of his estate. Section 2-1-301(a) (xxviii), W.S.1977 (July 1980 Rev.), identifies an administrator as a "personal representative."

The administrator, appellant here, commenced a wrongful death action against the school bus driver and the school district under the authority of § 1-38-101, W.S.1977 (Cum.Supp.1983). In his complaint the administrator included the surviving brother and four sisters of the decedent among the persons for whose benefit the action was brought. A motion was filed by the defendants, appellees here, to strike those portions of the complaint which purported to include the surviving brother and sisters among those persons for whose benefit the action was brought. In support of the motion, reliance was placed upon our decision in Saffels v. Bennett, supra. The district court granted the motion to strike. In his decision letter the judge said:

"The defendant's motion to strike from paragraph 2 of the complaint the subparagraphs (c), (d), (e), (f), and (g), and the language 'with the exception of Catherine Ann Hintz, a sister, who resides at 229 Jacolyn Drive N.W., Cedar Rapids, Iowa,' is granted on the grounds and for the reasons that the Court feels compelled to hold, and does hold, that brothers and sisters are not persons entitled to recover damages under the Wyoming Wrongful Death Statute. The Court believes that this result is compelled by the Supreme Court's Opinion in Saffels v. Bennett, 630 P.2d 505 (Wyo.1981). Were it not for this case, which seems to compel this holding, this Court would be inclined to construe the amendment of the Wyoming Statutes to hold that the deletion of the words, 'brother, sister, or child or children of a deceased child' related only to that section holding that no debt of the deceased may be satisfied out of the proceeds of any judgment, but did not restrict those persons entitled to inherit as heirs at law of a decedent from proving their damages, if any, upon the wrongful death of the decedent. * * * "

An order consistent with the district court's decision letter was entered, but the order specifically provided:

" * * * pursuant to Rule 54(b) of the Wyoming Rules of Civil Procedure that the Court herein has made a determination that there is no just reason for delay and hereby expressly directs that as to the claim of the 'brothers and sisters' herein, this Order is a final Order and Judgment of the Court and hereby directs an entry be made in accordance herewith."

A timely appeal was taken by the administrator from the court's order. The case presented to us upon appeal involves the identical problem addressed by the district court. In addition, we must address the question of the jurisdiction of this court and justify proceeding to decide the appeal on its merits.

We are concerned about our jurisdiction to dispose of this appeal on the merits because it is taken from an order purporting to grant in part a motion to strike. Ordinarily such an order would lack the requisite finality for purposes of appeal. See Annotation 1 A.L.R.2d 422 (1948), and the cases there cited. We do have an obligation to determine whether the jurisdiction of this court has been properly invoked. Board of Trustees of University of Wyoming v. Bell, Wyo., 662 P.2d 410 (1983); and Harrington v. Hoyt, Wyo., 648 P.2d 556 (1982). The usual rule provides that only final orders and judgments are appealable. 2-H Ranch Company, Inc. v. Simmons, Wyo., 658 P.2d 68 (1983). "A final order is: (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment." Rule 1.05, W.R.A.P.

Rule 12(f), W.R.C.P., provides for motions to strike as follows:

"(f) Motion to strike.--Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."

The purpose of a motion to strike is specific, and it should not be invoked to obtain the dismissal of all or part of a complaint for failure to state a claim upon which relief may be granted. Further it is not intended to be a substitute for a motion for judgment on the pleadings. Cf., Rules 12(b)(6) and 12(c), W.R.C.P. In 5 Wright and Miller, Federal Practice and Procedure § 1380, pp. 782-783 (1969), the proposition is addressed in this way:

" * * * [A motion to strike] is neither an authorized nor a proper way to procure the dismissal of all or a part of a complaint, or a counterclaim, or to strike affidavits. But as is true in other contexts, the technical name given to a motion challenging a pleading is of little importance inasmuch as prejudice hardly can result from treating a motion that has been inaccurately denominated a motion to strike as a motion to dismiss the complaint. * * * "

Rule 12(f), W.R.C.P., is identical to Rule 12(f), F.R.C.P., and federal authorities interpreting the rule are highly persuasive. Robertson v. TWP, Inc., Wyo., 656 P.2d 547 (1983). In the federal courts motions to strike, which, when granted, have the effect of dismissing all or part of an asserted claim, are treated as brought under Rule 12(b)(6), F.R.C.P., which authorizes the dismissal of all or part of a complaint for failure to allege a claim upon which relief can be granted. Asay v. Hallmark Cards, Inc., 594 F.2d 692 (8th Cir.1979); Bertucelli v. Carreras, 467 F.2d 214 (9th Cir.1972); Commercial Union Insurance Company v. Upjohn Company, 409 F.Supp. 453 (W.D.La.1976); Cash v. Frederick & Company, Inc., 57 F.R.D. 71 (E.D.Wis.1972); and 5 Wright and Miller, supra, § 1380 at 783, n. 82. This court has affirmed an order striking a claim from a complaint, in effect treating the order as a dismissal for failure to allege a claim upon which relief could be granted. Parsons v. Roussalis, Wyo., 488 P.2d 1050 (1971). See also Lafferty v. Nickel, Wyo., 663 P.2d 168 (1983) (motion for summary judgment without supporting materials treated as a motion for dismissal under Rule 12(b)(6) or as a motion for judgment on the pleadings under Rule 12(c)).

In this case the trial court ruled that surviving brothers and sisters are not beneficiaries under our wrongful death act. We conclude that the order of the trial court was a final order because it did have the effect of foreclosing the brother and sisters from participation in the action and from any recovery from wrongful death as a matter of law. While the wrongful death claim is held by the personal representative in a fiduciary capacity for those persons for whose benefit it is brought, it does appear that each of them has a separate stake in the proceeding because of the provisions of § 1-38-102(c), W.S.1977 (Cum.Supp.1983), providing that the court or jury may award to each such person the amount of damages to which it considers the person entitled. In this case the order of the district court adversely determined the rights of the brother and sisters to such awards by the jury, even though the cause of action brought by the personal representative continued for the benefit of others. The trial court properly determined under Rule 54(b), W.R.C.P., that the effect of its order was to make a complete and final disposition of the claims for damages of some but not all of the parties for the benefit of whom the action was...