Up to this point, the law had been that a landowner was not liable for injuries resulting from a slip and fall on a “natural accumulation of ice and snow.” Liability would only be found if the owner created an “unnatural accumulation that was substantially different” than would normally occur.

In Pinnacle, the Court noted that for many years the question existed whether a municipal ordinance requiring land owners to remove snow and ice (or maintain sidewalks) could establish a standard of care. In Pinnacle, the Court found that such an ordinance did create a standard of care in such cases. This case changes the law to be applied to slips and falls on snow and ice. The existence of such an ordinance creates a duty to keep sidewalks (and likely parking lots) clear of snow and ice. The Court did state, however, that the defense of an “open and obvious” danger would still apply.

In Wyoming, most cities and towns have ordinances on snow and ice removal and Pinnacle will change the way such cases are evaluated. The prior law will still apply in rural areas since most counties and the state itself do not have snow and ice removal laws.

Comparative Fault and Immune Parties. The Pinnacle Bank case, discussed above, also presented the issue of whether an immune party (a governmental entity) could be placed on the verdict form for an allocation of fault. Several jurisdictions do not permit immune parties to be placed on the verdict form.

After considering the issue, the Court ruled that all actors, regardless of whether or not they are immune, must be placed on the verdict form for an allocation of fault. Immune actors under Wyoming law include governments, employers covered by workers’ compensation, those rendering aid at an accident scene, and others. This case resolves an unknown issue in Wyoming and makes clear that the fault of all actors must be taken into account.

Bad Faith Claims Pre-Empted by ERISA. Claims for bad faith against an employer sponsored benefit plan are pre-empted by the Employee Retirement Income Security Act (ERISA). The Court ruled that in the context of employer sponsored plans, ERISA comprehensively regulates those plans and pre-empts any state law relating to such plans. Therefore, bad faith claims against the insurer based on state law must be dismissed. Moffett v. Halliburton Energy Services, 291 F.3rd 1227 (10th Cir. 2002).

Such plans would include health insurance, disability insurance, life insurance, and employer sponsored worker’s compensation plans. ERISA likewise bars suits against the employer who sponsors the plan.

In addition to bad faith, ERISA pre-empts claims based on breach of contract, interference with contract, punitive damages, consequential damages, etc. Damages are limited to the benefits due under the terms of the plan.

Claims based on or arising out of COBRA, which is part of ERISA, are also pre-empted. Smith v. Rogers Galvanizing, 128 F.3rd 1380 (10th Cir. 1997).

To fall within ERISA protection it need only be shown that the employer sponsored plan be: (1) a plan, fund, or program; (2) established or maintained by an employer; and (3) to provide health care, disability or similar benefits to participants. Spina v. Mass. Casualty Co., 256 F.3rd 1006 (10th Cir. 2001).

A Parent Cannot Sign Away Child’s Rights to Sue. In Cooper v. Aspen Skiing Co., 48 P.3rd 1229 (Colo 2002), the Colorado Supreme Court held a parent cannot release a minor’s prospective negligence claims. In Cooper, a minor was involved in ski racing and his mother signed a liability release. The minor was involved in a ski accident with resulting injuries. The Colorado Supreme Court ruled that the state has an important interest in protecting minors from his or her thoughtless decisions to release someone from prospective personal injury claims, as well as unwise decisions of his parents who are routinely asked to sign away a minor’s rights.

The Court further held that a third party may not require a parent to indemnify the third party for negligence committed against the child. Other courts have also made similar rulings including courts in Utah and Washington. Wyoming has not specifically ruled on this issue. These rulings could certainly have far reaching consequences in recreational activities and sports.

Punitive Damages and Intoxication. Where a defendant admits liability, the trial court may exclude evidence of the defendant's intoxication. Parker v. Artery, 889 P.2d 520 (Wyo. 1995). This same case also says that punitive damages may not be awarded against the estate of a deceased defendant.

Loss of Consortium. Loss of consortium claims are "derivative claims" and are therefore subject to "per person" as opposed to "per occurrence" policy limits. National Farmers Union v. Zuber, 824 F. Supp. 1017 (D. Wyo. 1993); Worman v. Carver, 44 P.3rd 82 (Wyo. 2002). Further, damages for loss of consortium are not recoverable where the claimant's injuries are only monetary (i.e., property damage or loss). Verschoor v. Mountain West, 907 P.2d 1293 (Wyo. 1995).

Workers’ Compensation Liens. If an injured party was covered by workers’ compensation, the Wyoming Workers’ Compensation Division (“Division”) has a “super lien” in the event the injured employee recovers a settlement from a third party. The Division has a statutory lien on the proceeds of any such settlement or judgment up to the total amount of monies paid to the injured employee. W.S. §27-14-105.

Before offering a settlement to an injured employee, the insurer must notify the Division of the proposed settlement and give the Division 15 days to object. If the Division’s lien is not protected, the Division can assert a claim against the third party insurer for all payments made to the employee. This presents a real risk of an insurer having to pay the same amount twice.

Motor Carriers and Spoilation of Evidence. In Scrimpsher v. Glenn National Carriers, U.S.D.C.- WY, Docket 03-CV-00075, our firm was defending motor carrier, Glenn National. In that case, following an accident the driver’s logs had been misplaced and never located. Plaintiff claimed the Glenn National driver was exceeding his hours of service. Plaintiff attempted to amend the complaint to assert a claim for spoilation of evidence as an independent cause of action. This issue had never been addressed by the Wyoming Supreme Court.

In denying the motion the Court relied on Coletti v. Cudd Pressure Control, 165 F.3rd 767 (10th Cir. 1999), which found that, based on past cases , the Wyoming courts would not recognize a cause of action for spoilation of evidence. Wyoming courts will only permit a jury instruction in such cases. The instruction provides that the loss or destruction of evidence may permit the jury to draw inference that the lost or destroyed evidence would be unfavorable to the party in possession of the evidence.

Even when evidence has been lost or destroyed, an adverse inference is only permitted if the loss or destruction was in bad faith or intentional. Mere negligence in losing or destroying evidence will not permit a negative inference. Aranburu v. Boeing Company, 112 F.3rd 1398 (10th Cir. 1997); Talmadge v. State Farm, 1997 W.L. 73467 (10th Cir. (Wyo.)). There is no independent cause of action for spoilation of evidence. Even if evidence is lost or destroyed, an adverse inference is only permitted if the loss or destruction was in bad faith or intentional. This applies to all claims of spoilation, not just cases involving motor carriers.

Declaratory Judgment Actions. Where a question pertaining to coverage or the extent of coverage is in issue, an insurer may file a declaratory judgment action against its insured. There is no requirement that the insurer pay its insured's attorney's fees in defending the declaratory judgment action and that absent a specific contractual provision to the contrary, each party will be required to pay its own attorney's fees. Pribble v. State Farm Ins. Co., 933 P.2d 1108 (Wyo. 1997). An insurer does not commit bad faith by filing a declaratory judgment action and conduct by the insurer or insurance counsel in a declaratory judgment action does not constitute bad faith. International Surplus Lines Ins. Co. v.. University of Wyoming, 850 F.Supp 901 (D. Wyo. 1994).

Motor Carriers - Liability of Transportation Brokers. In Schramm v. Foster, 2004 W.L. 1882629 (D. MD 2004) a shipper hired transportation broker Robinson to arrange transport of milk. Robinson placed the load with motor carrier Groff Brothers. While in Maryland Groff Brother’s driver was in an accident. Several defendants were sued including the transportation broker, Robinson. The claims against Robinson included respondeat superior and negligent hiring. The Court ruled that a broker’s role in arranging transportation does not result in liability under respondeat superior for actions of the motor carrier’s employees. The driver is not the broker’s employee.

However, the Court did find a question of fact on whether the broker negligently hired Groff Brothers based on safety data from the F.M.C.S.A. Case law imposes a duty of care on brokers who select carriers and as such, there was a question of fact if Robinson negligently selected Groff Brothers to transport the milk.

Arbitration. In two recent and separate cases, our firm was representing insurance carriers whose policies contained arbitration provisions. One policy was a private health insurance policy and the other policy was an automobile policy. The actions were pending in federal court and we filed motions to dismiss or stay the respective cases based on the arbitration provisions. The Plaintiffs in both cases opposed arbitration on multiple grounds including policy construction, misrepresentation, bad faith, unfairness, and constitutional issues.

Based on recent Wyoming case law and recent case law from the Tenth Circuit, the district court ordered both cases stayed and both were referred to arbitration. The Court ruled that arbitration provisions are valid and are to be enforced as written. Stewart Title Co. v. Tilden, 64 P.3rd 739 (Wyo. 2003); Gibson v. Wal Mart, 181 F.3rd 1163 (10th Cir. 1999).

FIRM NEWS - Buchhammer and Kehl, P.C., are members of the Defense Research Institute (DRI); Trucking Industry Defense Association (TIDA); Association of Defense Trial Attorneys, (ADTA); Transportation Lawyers Association (TLA); Association of Transportation Law, Logistics and Policy; and the Defense Lawyers Association of Wyoming (DLAW).

The firm of Buchhammer & Kehl, P.C., is A-V rated by Martaindale-Hubbell and we are the Wyoming Law Digest Revisor for Best’s Directory of Recommended Insurance Attorneys.