Dye by Dye v. Fremont County School Dist. No. 24
Annotate this Case
Dye by Dye v. Fremont County School Dist. No. 24
1991 WY 145
820 P.2d 982
Case Number: 90-135
Decided: 11/19/1991
Supreme Court of Wyoming
SUZANNE DYE, BY HER NEXT FRIEND, TWILLI J. DYE, APPELLANT (PLAINTIFF),
v.
FREMONT COUNTY SCHOOL
DISTRICT NO. 24, APPELLEE (DEFENDANT).
Appeal from the
District Court, FremontCounty, Elizabeth A. Kail,
J.
William L. Miller of
Miller and Fasse, Riverton, for appellant.
Jay Dee Schaefer of
Schaefer & Associates, Laramie, for
appellee.
Before URBIGKIT,
C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.
CARDINE,
Justice.
[¶1.] Suzanne Dye appeals the
W.R.C.P. 12(b)(1) and (6) dismissal of her personal injury suit against Fremont
County School District No. 24. Dismissal resulted from her mother's failure to
file a timely notice of claim with the school district as required under the
Wyoming Governmental Claims Act.
[¶2.] We reverse and
remand.
[¶3.] Dye frames the issues
as:
"1. If a school
district has purchased liability insurance, has the district waived any claims
of sovereign immunity pursuant to § 21-3-129, W.S. 1977, as amended, to the
extent of its liability insurance and does the claims procedure and statute of
limitations of the Governmental Claims Act apply?
"2. Is the notice
requirement and statute of limitations of the Wyoming Governmental Claims Act as
applied to minors unconstitutional as violation of due process and equal
protection of the law?"
[¶4.] For purposes of review
of this dismissal, we accept the facts alleged in the complaint as true. Gates
v. Richardson, 719 P.2d 193, 194 (Wyo. 1986). Appellant
states in her complaint that she injured her knees while running a two-mile race
as a member of the ShoshoniHigh
School track team on April 24, 1986. ShoshoniHigh School is part of Fremont County
School District No. 24. Before the injury, Dye was aware of problems with her
knees, and her mother expressed concern to the school's track coach about Dye
participating in track. Dye's mother expressly told the coach that Dye should
not run in the two-mile race. Contrary to the mother's wishes, the coach ran Dye
in that race, and she was injured. As a result of the injury, Dye underwent
surgery on both knees and sustained medical expenses of at least
$26,000.
[¶5.] On January 25, 1989,
Dye's mother filed a notice of claim with the school district. The school
district denied the claim on January 31, 1989. This suit followed on April 24,
1989. Dye filed an amended complaint in August 1989, reciting that at the time
of Dye's injury, the school district had a policy of liability insurance. Dye
brought her suit pursuant to W.S. 21-3-129, which states in
part:
"(a) The board of
trustees of each school district within the state may procure a policy or
policies of comprehensive liability insurance which would save the school
district harmless from financial loss arising out of any claim, demand, suit, or
judgment for personal injury or death occasioned by the alleged tort of any
officer, employee, or agent of the school district. The policy or policies shall
specify a maximum amount of fifty thousand dollars ($50,000.00) or more payable
for injury to any one (1) person and a maximum amount of five hundred thousand
dollars ($500,000.00) or more payable for any one (1) accident regardless of the
number of persons injured.
"(b) The defense of
governmental immunity is expressly waived to the extent of any insurance
coverage of the district involving any such alleged tort. All defenses which
would be available to a private corporation in an action against such
corporation for the torts of its officers, employees, or agents shall be
available to a school district in any action against it arising under this
section."
[¶6.] The school district
filed a motion to dismiss pursuant to W.R.C.P. 12(b)(1) and 12(b)(6) in lieu of
answering Dye's amended complaint. The district argued that the Wyoming
Governmental Claims Act contained the exclusive remedy for Dye's cause of
action. The district contended that Dye's failure to file a notice of claim with
the school district within a two-year period from the date of her injury
pursuant to W.S. 1-39-113 (June 1988 Repl.) barred this cause of
action.
[¶7.] The trial court agreed
with the school district. It found that Dye's failure to timely file her claim
resulted in the court lacking jurisdiction. The suit was dismissed for lack of
subject matter jurisdiction on May 7, 1990.
[¶8.] Both the Governmental
Claims Act and W.S. 21-3-129 deal with bringing suit against a school district.
Statutes relating to the same subject should be read in pari materia to
ascertain legislative intent. Paravecchio v. MemorialHospital, 742 P.2d 1276, 1278 (Wyo. 1987), cert. denied
485 U.S. 915, 108 S. Ct. 1088, 99 L. Ed. 2d 249 (1988). The Wyoming Governmental
Claims Act is the exclusive remedy against a school district or other
governmental entity. W.S. 1-39-116; Dee v. LaramieCounty, 666 P.2d 957, 958 (Wyo. 1983). Thus, while
W.S. 21-3-129 allows an action against a school district to the extent of its
liability insurance, such an action must be brought pursuant to the procedures
outlined in the Governmental Claims Act. These procedures require filing of a
proper notice of claim within the limitation period.
[¶9.] Having resolved the
filing of claim issue in the school district's favor, we now turn to the
application of the Governmental Claims Act as it relates to a minor. Wyoming
Statute 1-39-113 stated:
"(a) No action shall
be brought under this act against a governmental entity unless the claim upon
which the action is based is presented to the entity as an itemized statement in
writing within two (2) years of the date of the alleged act, error or omission,
except that a cause of action may be instituted not more than two (2) years
after discovery of the alleged act, error or omission, if the claimant can
establish that the alleged act, error or omission was:
"(i) Not reasonably
discoverable within a two (2) year period; or
"(ii) The claimant
failed to discover the alleged act, error or omission within the two (2) year
period despite the exercise of due diligence."
We recently discussed
this statute as it relates to minors in Alewine v. State Dept. of Health and
Social Services, Div. of Public Assistance and Social Service, 803 P.2d 1372
(Wyo. 1991). The issue confronting us here is one we left unanswered in that
case.
[¶10.] In Alewine, a minor's father living in
another state did not learn of the State's attempt to place the minor into
adoption until long past the claim period. We affirmed the trial court's
dismissal of the father's claims against the State for interference with child
custody and intentional and negligent failure and refusal to reunify a family,
the father not having disputed that his claim was barred due to the untimely
notice of claim. Conversely, the minor raised the issue and was excused from the
timely notice of claim provisions because the father did not have a reasonable
opportunity to discover his child's injury within the proper time limit. 803 P.2d at 1376. However, we limited our holding to the facts of that case, which
were "out of the `ordinary.'" Id. at 1377. We declined to answer the
question confronting us here because "[w]e d[id] not find it necessary * * * to
break new ground in this instance." Id.
[¶11.] An unemancipated minor, by himself, has
no procedural capacity to sue or be sued. See 43 C.J.S. Infants § 215 (1978).
Wyoming Rules Civil Procedure 17(c) allows a "representative, such as a general
guardian, committee, conservator, or other like fiduciary" to act on a minor's
behalf. However,
"if * * * such
representative fails to act, he may sue by his next friend or by guardian ad
litem. The court shall appoint a guardian ad litem for an infant or incompetent
person not otherwise represented in an action or shall make such other order as
it deems proper for the protection of the infant * * *." Id.
A "next friend" is
one, who without being a regularly appointed guardian, acts for a person under a
legal disability. In re Moody, 105 B.R. 368, 372 (S.D.Texas 1989). A "guardian
ad litem" is appointed by the court to act in the interest of a minor or other
person under a disability. Von Bulow by Auersperg v. von Bulow, 634 F. Supp. 1284, 1293 (S.D.N.Y. 1986). A next friend may act on behalf of a minor without
court appointment; a next friend may or may not volunteer - thus a minor may or
may not be represented. There is no substantial difference between a guardian ad
litem and a next friend, although historically, a guardian ad litem represented
a minor defendant and a next friend represented a minor plaintiff. Id.
[¶12.] Dye's mother is listed on the caption of
this case as her daughter's next friend. The mother had authority as her general
guardian to pursue this action under W.R.C.P. 17(c), but she failed to act
timely on her daughter's behalf. Susan Dye, as a minor, was not able to give
timely notice of claim herself. The requirement of giving notice presupposes the
existence of an individual capable of giving notice. Turner v. Staggs, 89 Nev.
230, 510 P.2d 879, 881, 59 A.L.R.3d 81, cert. denied sub nom, Clark County,
Nevada v. Turner, 414 U.S. 1079, 94 S. Ct. 598, 38 L. Ed. 2d 486 (1973). Dye's
mother, as next friend, was capable of giving notice but was either unwilling to
give timely notice or just failed to do so. In the interest of justice, we
cannot allow a minor, who has no realistic ability to protect herself, to suffer
loss of her claim because of a parent's failure to act.
[¶13.] When a parent fails to file a timely
notice of claim pursuant to W.S. 1-39-113(a), that parent does not adequately
represent the child. The child is powerless to protect her own interests. We
hold, therefore, that the time for filing the claim required by the Governmental
Claims Act on behalf of a minor begins to run at the time of the appointment of
a guardian ad litem by the court pursuant to W.R. C.P. 17(c). See W.S.
1-39-113(a)(ii). This disability for failing to file a claim disappears upon the
minor reaching the age of majority.
[¶14.] Our decision here might be read as
adverse to our holding in Awe v. University of Wyoming, 534 P.2d 97 (Wyo. 1975). In Awe, we held that a plaintiff's
minority did not excuse him from complying with the notice of claim statute that
is our current W.S. 9-1-404. Id. That notice of claim statute does not now
and did not then contain a discovery provision. Perhaps Awe can be distinguished
on that basis. Whether capable of being distinguished or not, however, we
overrule Awe to the extent that our decision here is in disagreement. See
Alewine, 803 P.2d at 1379 (Thomas, J., dissenting).
[¶15.] Reversed and remanded for further
proceedings consistent with this opinion.
THOMAS, J.,
files a dissenting opinion.
THOMAS,
Justice, dissenting.
[¶16.] I cannot agree with the disposition of
this case in accordance with the majority opinion. I adhere to the views that
are set forth in my dissent in Alewine v. State, Dept. of Health and Social
Services, Div. of Public Assistance and Social Services, 803 P.2d 1372, 1377
(Wyo. 1991).
[¶17.] Recognizing that this opinion represents
a logical progression of Alewine, extending the rule of that case to the
situation in which the natural guardian had knowledge of the injury, I still
would find that Awe v. University of
Wyoming, 534 P.2d 97 (Wyo. 1975), is sound law
and should not be overruled. Since the majority chooses to overrule Awe "to the
extent that our decision here is in disagreement" (Op. at 985), I am more firmly
persuaded "that the majority is adopting a savings clause or minority exception
for the claims statute." Alewine, 803 P.2d at 1379 (Thomas, J., dissenting). The
court is even more guilty of judicial legislation than
before.
[¶18.] I would affirm the decision of the trial
court.
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