Worthington v. State
| Decision Date | 18 July 1979 |
| Docket Number | Nos. 5016-5018,s. 5016-5018 |
| Citation | 598 P.2d 796 |
| Parties | R. O. WORTHINGTON and Virginia H. Worthington, as Guardians of the Person and Estate of Kelly J. Worthington, a Minor, Appellants (Plaintiffs below), v. The STATE of Wyoming and the State Highway Commission of Wyoming, Appellees (Defendants below), Edward A. Malar (Defendant below), and State Farm Mutual Automobile Insurance Company, Appellee (Intervenor below). Clifford A. SCOTT, Individually and as Father of Mark A. Scott, and Mark A. Scott, Individually, Appellants (Plaintiffs below), v. The STATE of Wyoming, the State Highway Commission of Wyoming, and the Motor Vehicle Division of the Department of Revenue and Taxation, Appellees (Defendants below), Edward A. Malar (Defendant below), State Farm Mutual Automobile Insurance Company, Appellee (Intervenor below). Patricia A. MILLER and Harry M. Miller, Appellants (Plaintiffs below), v. The STATE of Wyoming and the State Highway Commission of Wyoming, Appellees (Defendants below), James W. Grandpre, Reiman-Wuerth Co., a Wyoming Corporation, Wyoming Beverage, Inc., a Wyoming Corporation, Oliver Olsen d/b/a Frontier Distributing Co., and the City of Cheyenne, Wyoming (Defendants below). |
| Court | Wyoming Supreme Court |
John E. Stanfield, of Smith, Stanfield & Scott, Laramie, signed the briefs and appeared in oral argument on behalf of appellants-Worthington in No. 5016.
Forrest S. Blunk, of Gavend, Sullivan & Bryans and Blunk & Johnson, Denver, Colo., signed the briefs and appeared in oral argument on behalf of appellants-Scott in No. 5017.
David H. Carmichael and John C. Patton, of Carmichael & Statkus, Cheyenne, signed the brief on behalf of appellants-Miller in No. 5018; oral argument was presented by Mr. Carmichael.
G. Joseph Cardine, Laramie, and Laird Campbell of DeMoulin, Anderson, Campbell & Laugesen, Denver, Colo., signed the brief on behalf of appellee-intervenor State Farm Mutual Automobile Insurance Company in Nos. 5016 & 5017; oral argument was presented by Mr. Cardine.
John J. Rooney, Atty. Gen., and Glenn A. Williams, Senior Asst. Atty. Gen., Cheyenne, signed the brief on behalf of appellees State of Wyoming, State Highway Commission of Wyoming, and the Motor Vehicle Division of the Department of Revenue and Taxation in Nos. 5016, 5017, & 5018; oral argument was presented by Mr. Williams.
Blair J. Trautwein, Cheyenne, Wyoming Trial Lawyers' Association, signed the brief on behalf of amicus curiae.
Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *
GUTHRIE, Justice, Retired.
This appeal involves three separate suits arising from two different factual situations. These actions were consolidated for the purpose of this appeal for briefing and argument. All three of these appellants vigorously asserted that sovereign immunity, insofar as it applies to the State and particularly to its activities in the area of its construction and general operation through the state highway system should be abrogated. The two factual situations herein involved are hereafter set out.
This action involves an automobile accident that occurred on the 6th day of January, 1977, at or near the intersection of East Lincolnway and Rosebud Street near the eastern edge of Cheyenne outside the city limits. The complaint against the State of Wyoming and the State Highway Department sets out various and assorted alleged negligent actions. It is most detailed but, in summary, appears to be a claim based upon the alleged negligence of the Highway Department for an improper and unsafe design in the area of this accident, for failure to have the proper traffic controls and for failure to have proper signs. The exact nature of the plaintiff's claim is difficult of determination.
This accident involved three vehicles: a large, beverage delivery truck, which was attempting to turn from south on Rosebud to east on Lincolnway, plaintiff's vehicle, which was proceeding west on Lincolnway, and defendant Grandpre's vehicle which was turning from east on Lincolnway to north on Rosebud. The highway, at the time of the accident, was a four-lane road with service roads upon either side. Rosebud extended south of Lincolnway but to the north terminated as a driveway to a place of business called Mr. Steak. The east and west lanes of the highway are separated by a grass median with a large asphalt area for Rosebud to make its path across Lincolnway. The beverage vehicle pulled out of Mr. Steak going south on Rosebud and stopped in the asphalt portion of the median area between the east and west lanes of Lincolnway and waited for traffic to clear. The beverage truck was on the south side of the median area, which would be the north lane for traffic on Rosebud. When the Grandpre vehicle entered the westbound lane of Lincolnway, his vision to the east was obscured by the beverage truck, which was located in the median. The Grandpre car impacted with plaintiff's motor vehicle immediately upon entrance into the westbound lane of Lincolnway, and plaintiff, Patty Miller, had not, could not, or did not see the Grandpre vehicle turning because her vision was blocked by the beverage truck. The Grandpre pickup hit the driver's side of the Miller vehicle and with resultant injuries to Patricia Miller, which were most severe and caused permanent injury.
The court made disposal of this action by sustaining the motion to dismiss filed by the State, which relied upon the doctrine of sovereign immunity.
Although there are two separate suits involved under these numbers, they are both based upon one set of facts. Otto and Virginia H. Worthington, as guardians of the estate of their daughter, Kelly J. Worthington, a minor, and Clifford A. Scott, individually and as father of Mark A. Scott, and Mark A. Scott, individually, filed these suits to recover damages for injuries that were suffered as a result of this occurrence. The accident in question occurred approximately 16 miles southwest of Laramie, Wyoming, on August 28, 1976, after a vehicle, which had been driven by Mark Scott, became disabled, forcing him to leave it upon the shoulder of the road with the car pointed in an easterly direction. Another vehicle, which was being driven by Kelly Worthington, was parked upon the same shoulder and facing west so that the light from its headlights would illuminate the Scott vehicle, while he worked upon it. At that time and place, the highway in question had recently been resurfaced by the Wyoming State Highway Department, and there was no center strip or shoulder markings, they having been obliterated in the course of these resurfacing operations. There was no temporary center line and no signs warning of the absence thereof.
On the evening of August 28 at approximately 8:45 p. m., while the Scott and Worthington vehicles were parked as before-mentioned, an eastbound vehicle which was being driven by a defendant Edward Malar ran into the back of the Scott vehicle. Scott, who was standing between his vehicle and the Worthington car, sustained severe leg injuries, which resulted in the loss of both legs. Kelly Worthington was seated in her car, and she sustained a severe neck injury, which led to total paralysis. The Scott vehicle was propelled forward into the Worthington vehicle as a result of the impact with the Malar vehicle. Malar was a man over 67 years of age and had retired as a ranch hand with apparently little financial resource. The claim is made that he had been virtually blind in his right eye for several years, but he had been issued an unrestricted driver's license just seven months prior to the accident. Malar explained that a cloud of dust caused by gravel upon the road obscured his vision, and that this combined with the lack of a center line and shoulder line caused him to run into the Scott car. There is no question but that the center line and the shoulder line had been destroyed as a result of this resurfacing operation and had not been restored.
There is, however, another factor and another factual situation in connection with this claim that is totally different than the Miller case. Plaintiffs, appellants here, further assert in connection with this appeal, that because at the time of the accident, the State of Wyoming had in full force and effect a liability insurance from State Farm Mutual with a limit of $1,000,000.00 for each occurrence, the State Highway Department had waived sovereign immunity to the extent of this coverage.
This became the subject of consideration by the trial court. After the intervention in this suit by the said State Farm Mutual Insurance Company, they sought declaratory judgment denying coverage and determining their liabilities and rights to the State Highway Department. The court found that this matter did not arise under the coverage of the said insurance policy, and State Farm thereafter moved for summary judgment to implement this finding. This was granted. Appellants have appealed from that judgment as well as the other judgment which held the Highway Department immune under the doctrine of sovereign immunity.
It would appear and no questions are raised in either case that all the appellants had filed proper claims with the State Auditor within the time period within which they should be filed.
Although there has been considerable discussion by this court in the cases of Oroz v. Board of County Commissioners of Carbon County, Wyo., 575 P.2d 1155 (1978); and Jivelekas v. City of Worland, Wyo., 546 P.2d 419 (1976), this case involves an attack upon long-settled precedent and numerous decisions by this court. Neither Oroz nor Jivelekas, supra, are authority upon which disposal may be made of this matter.
The principle and basic question herein is whether this court should abrogate the doctrine of sovereign immunity insofar as it applies solely to the State of Wyoming.
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