Wyoming Ins. Dept. v. Sierra Life Ins. Co., No. 5069

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE; McCLINTOCK
Citation599 P.2d 1360
Docket NumberNo. 5069
Decision Date10 September 1979
PartiesWYOMING INSURANCE DEPARTMENT, Appellant (Plaintiff), v. SIERRA LIFE INSURANCE COMPANY, Appellee (Defendant).

Page 1360

599 P.2d 1360
WYOMING INSURANCE DEPARTMENT, Appellant (Plaintiff),
v.
SIERRA LIFE INSURANCE COMPANY, Appellee (Defendant).
No. 5069.
Supreme Court of Wyoming.
Sept. 10, 1979.
Rehearing Denied Oct. 25, 1979.

Page 1361

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Bob R. Bullock, Senior Asst. Atty. Gen., Cheyenne, for appellant (plaintiff).

Glenn Parker of Hirst & Applegate, Cheyenne, for appellee (defendant).

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *

McCLINTOCK, Justice.

The question presented by this appeal is whether the trial judge properly dismissed a complaint with prejudice pursuant to a Rule 12(b)(6), W.R.C.P., motion. We find that the dismissal of the case amounted to a summary judgment, and that the granting of summary judgment was improper.

The Wyoming Insurance Department filed suit against Sierra Life Insurance Company, an Idaho corporation authorized to do business in Wyoming. Plaintiff alleges the following: (1) Defendant violated § 26-2-120, W.S.1977, when it refused to allow an examination of its business by a Wyoming examiner. (2) Defendant has failed to reimburse the state for expenses incurred by the examiner who was sent to defendant's home office to conduct a financial examination in accordance with § 26-2-122, W.S.1977. (3) Defendant violated the provisions set forth under the Wyoming Insurance Code and civil penalties should be granted in accordance with § 26-1-115(b), W.S.1977. (4) Defendant has failed to pay premium taxes for 1976 and 1977 in violation of § 26-4-103, W.S.1977.

The complaint was filed on March 16, 1978. On March 31, 1978, Sierra Life Insurance Company moved the court to dismiss the state's complaint pursuant to Rule 12(b), W.R.C.P., and a hearing was held on the motion to dismiss on November 2, 1978. The state failed to appear at the hearing. On November 6, 1978, the district court entered an order dismissing the complaint. In this order, the trial judge stated that he had "examined the files."

Plaintiff argues that the motion to dismiss should not have been granted because the complaint states a claim upon which relief may be granted, and that the trial court abused its discretion in dismissing the complaint with prejudice. We do not agree with plaintiff's interpretation of the issues. We are of the opinion that the dispositive question is whether the court properly disposed of the case upon summary judgment.

The Federal Rules of Civil Procedure served as a model for our own rules of civil procedure. Rule 12(b)(6), W.R.C.P., supra, and the last sentence of Rule 12(b), W.R.C.P., are identical to the federal rules. The original version of Rule 12(b) of the Federal Rules of Civil Procedure did not contain the last sentence. The last sentence was added in 1948 to resolve a controversy as to whether it was proper to introduce evidence in addition to the complaint on a Rule 12(b)(6) motion. Advisory Committee Note to the 1948 Amendment to Rule 12(b), F.R.C.P.; Wright & Miller, Federal Practice and Procedure: Civil § 1355.

The last sentence of Rule 12(b) provides:

"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and

Page 1362

disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

In School Districts Nos. 2, 3, 6, 9, and 10 v. Cook, Wyo., 424 P.2d 751, 754 (1967), we held that if a court, pursuant to a Rule 12(b) motion, reviews material in addition to the complaint, this court will treat the motion as one of summary judgment. In the present case, the trial judge in arriving at his decision considered an order issued by the First Judicial District in the County of Santa Fe, New Mexico (SF 77-15556). This order was not part of the pleadings. We will, therefore, review the trial court's order dismissing...

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16 practice notes
  • O'Donnell v. City of Casper, No. 83-107
    • United States
    • United States State Supreme Court of Wyoming
    • March 18, 1985
    ...record in order to determine whether summary judgment was proper. Wyoming Insurance Department v. Sierra Life Insurance Company, Wyo., 599 P.2d 1360 (1979). This court has the same duty as the trial court; assuming the record is complete, we have the same material before us as the trial cou......
  • Estate of Reed, Matter of, No. 88-137
    • United States
    • United States State Supreme Court of Wyoming
    • January 31, 1989
    ...Kirby Bldg. Systems, Inc. v. Independence Partnership No. One, 634 P.2d 342 (Wyo.1981); and Wyoming Ins. Dept. v. Sierra Life Ins. Co., 599 P.2d 1360 (Wyo.1979). An extended recitation of summary judgment analysis will not be pursued, but at its foundation is the principle that a summary ju......
  • Amrein v. Wyoming Livestock Bd., No. 91-210
    • United States
    • United States State Supreme Court of Wyoming
    • April 28, 1993
    ...Kirby Bldg. Systems v. Independence Partnership No. One, 634 P.2d 342 (Wyo.1981); Wyoming Ins. Dep't. v. Sierra Life Ins. Co., 599 P.2d 1360 We hold that the trial court properly dismissed the complaint as to Dr. Swanson because of the failure of the complaint to allege jurisdiction with re......
  • Oil, Chemical and Atomic Workers Intern. Union v. Sinclair Oil Corp., No. 86-239
    • United States
    • United States State Supreme Court of Wyoming
    • December 22, 1987
    ...surrounding the parties when this court examines the entire record, Wyoming Insurance Department v. Sierra Life Insurance Co., Wyo., 599 P.2d 1360 (1979), and considers this record from the viewpoint favorable to the party opposing the motion, the respondent. Greenwood v. Wierdsma, Wyo., 74......
  • Request a trial to view additional results
16 cases
  • O'Donnell v. City of Casper, No. 83-107
    • United States
    • United States State Supreme Court of Wyoming
    • March 18, 1985
    ...record in order to determine whether summary judgment was proper. Wyoming Insurance Department v. Sierra Life Insurance Company, Wyo., 599 P.2d 1360 (1979). This court has the same duty as the trial court; assuming the record is complete, we have the same material before us as the trial cou......
  • Estate of Reed, Matter of, No. 88-137
    • United States
    • United States State Supreme Court of Wyoming
    • January 31, 1989
    ...Kirby Bldg. Systems, Inc. v. Independence Partnership No. One, 634 P.2d 342 (Wyo.1981); and Wyoming Ins. Dept. v. Sierra Life Ins. Co., 599 P.2d 1360 (Wyo.1979). An extended recitation of summary judgment analysis will not be pursued, but at its foundation is the principle that a summary ju......
  • Amrein v. Wyoming Livestock Bd., No. 91-210
    • United States
    • United States State Supreme Court of Wyoming
    • April 28, 1993
    ...Kirby Bldg. Systems v. Independence Partnership No. One, 634 P.2d 342 (Wyo.1981); Wyoming Ins. Dep't. v. Sierra Life Ins. Co., 599 P.2d 1360 We hold that the trial court properly dismissed the complaint as to Dr. Swanson because of the failure of the complaint to allege jurisdiction with re......
  • Oil, Chemical and Atomic Workers Intern. Union v. Sinclair Oil Corp., No. 86-239
    • United States
    • United States State Supreme Court of Wyoming
    • December 22, 1987
    ...surrounding the parties when this court examines the entire record, Wyoming Insurance Department v. Sierra Life Insurance Co., Wyo., 599 P.2d 1360 (1979), and considers this record from the viewpoint favorable to the party opposing the motion, the respondent. Greenwood v. Wierdsma, Wyo., 74......
  • Request a trial to view additional results

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