Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerKeep Right Traffic LawsLaws Regarding Using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Percentage of Value: 75%
For vehicle to be in pre-accident condition, labor to rebuild and parts exceed 75% of ACV of vehicle. Wyo. Stat. § 31-2-106(v).
Automobile: Full Deductible Reimbursed If Recovery. Wyo. Stat. § 26-13-113 provides: “If insurer pays loss claim to its insured and insurer decides to subrogate insured’s loss claim, deductible amount shall be included in subrogated loss claim and insurance carrier shall pay deductible amount to its insured, without any deduction for expenses of collection, out of any recovery on subrogated claim, before any part of recovery is applied to any other use. If amount of deductible exceeds recovery, insurer shall pay only amount of recovery to insured.”
No specific requirement to include deductible in demand but must reimburse insured full deductible from any recovery.
Diminution of Value
First Party: In a construction defect claim, the Wyoming Supreme Court has found that diminution in value was an element of damage in an inverse condemnation case. Miller v. Campbell County, 901 P.2d 1107 (Wyo. 1995).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
There are no cases delineating the duty owed by a liability carrier who settles one of several claims against it arising out of the same accident. However, § 26-15-124 creates a private cause of action for a third party against a liability carrier. Stewart Title Guaranty Co. v. Tilden, 110 P.3d 865 (Wyo. 2005). It provides:
(c) In any actions or proceedings commenced against any insurance company on any insurance policy or certificate of any type or kind of insurance, or in any case where an insurer is obligated by a liability insurance policy to defend any suit or claim or pay any judgment on behalf of a named insured, if it is determined that the company refuses to pay the full amount of a loss covered by the policy and that the refusal is unreasonable or without cause, any court in which judgment is rendered for a claimant may also award a reasonable sum as an attorney’s fee and interest at ten percent (10%) per year. Wyo. Stat. § 26-15-124.
A bad faith case may only be brought by first party claimant, not third-party claimants. Herrig v. Herrig, 844 P.2d 487 (Wyo. 1992). Third-party claimants may, however, recover attorney’s fees and interest under the unreasonable-claim-denial provision of § 26-15-124 only when:
- third-party claimant has reduced his liability claim against insured to judgment or has reached settlement agreement with insured and insurer;
- insurer subsequently has refused to pay judgment or settlement amount to extent covered by policy; and
- refusal to pay has been determined to be unreasonable or without cause in action to collect on judgment or to enforce settlement agreement. Id.
Funeral Procession Traffic Laws
Wyoming law gives the right-of-way to a procession led by a funeral car or escorted by a police car and displaying flashing lights. The lead car must comply with traffic lights or signs, but the vehicles following need not stop if their headlights are on. The procession must yield to emergency vehicles. Wyo. Stat. § 31-5-123.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Driver’s negligence cannot be imputed to passenger unless conduct of passenger had material bearing upon driver’s operation of car at time of accident. Martinez v. Union Pacific, 714 F.2d 1028 (10th Cir. 1983). Same is true in owner’s action against third party for damages to vehicle when wife driving owner’s vehicle. Porter v. Wilson, 357 P.2d 309 (Wyo. 1960).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute. No Family Purpose Doctrine. Wyoming Dep’t of Revenue v. Wilson, 400 P.2d 144 (Wyo. 1965).
Sponsor Liability for Minor’s Driving: Stat. § 14-2-203, liability imposed on parents if child willfully damages or destroys property.
Keep Right Traffic Laws
Statute: Wyo. Stat. § 31-5-201, Wyo. Stat. § 31-5-304(c) and Wyo. Stat. § 31-5-203.
Summary: Drivers must drive in the right lane except when passing another vehicle; when an obstruction exists in the right half of the roadway; on a roadway with three marked traffic lanes or; or on a one-way roadway. Slower traffic must keep right.
It is illegal to obstruct traffic moving within the speed limit by driving in the left lane for a long time.
Flow of Traffic: On all roadways except one-way streets, any vehicle proceeding slower than the normal speed of traffic must drive in the right lane.
Notwithstanding any authorized minimum speed, no person shall operate a vehicle in the extreme left-hand lane of a controlled-access highway for a prolonged period in a manner which impedes the flow of other traffic traveling at a lawful rate of speed.
Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: You cannot operate a motor vehicle while using a hand-held electronic wireless communication device for text messaging. Exceptions include texting while parked and contacting an emergency response vehicle. Wyo. Stat. § 31-5-237.
Other Prohibitions: No Applicable Laws.
Loss Of Use
Loss of Use: Yes. Loss of use is recoverable in Wyoming. Farmers Home Administration v. Redland, 695 P.2d 1031 (Wyo. 1985). Rental value is a practical measure used in determining damages for loss of use. Wheatland Irrigation Dist. v. McGuire, 562 P.2d 287 (Wyo. 1977). Another method may be to prove rental or useable value of the vehicle lost. Id. The fact finder must have sufficient evidence in which it can reasonably determine the amount of the loss with some degree of certainty. Id. There shouldn’t be any speculation when determining loss of use damages. Colorado Kenworth v. Archie Meek Transp. Co., 495 P.2d 1183 (Wyo. 1972). A usual method of proof to sustain this type of loss is the cost of hiring or renting another vehicle. Id. This may be interpreted to allow for loss of use even when another vehicle is not rented. There is no caselaw expressly disallowing recovery for loss of use on a total loss claim. Accordingly, there is a strong argument that such a claim can be sustained.
Lost Profits: Probably. The court has not ruled directly on this issue, however the Court has hinted at its applicability with the necessary proofs. The party claiming loss of use must show with reasonable certainty the claimed amount of damages. Colorado Kenworth, Inc. v. Archie Meek Transp. Co., supra.
Med Pay/PIP Subrogation
Med Pay: Subrogation allowed notwithstanding non-assignability of personal injury claims. Northern Utilities Div. of K.N. Energy, Inc. v. Town of Evansville, 822 P.2d 829 (Wyo. 1991).
PIP: Coverage not applicable.
Made Whole: No reported state court cases applying Made Whole Doctrine.
Statute of Limitations: The four (4) year personal injury statute of limitations runs from date of insured’s accident. Wyo. Stat. § 1-3-105(a) (1999).
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: Wyo. Stat. § 31-5-509 (1977).
Common Law Rule: A thief’s action in stealing a vehicle is a superseding cause of a third-party’s injury. Lucero v. Holbrook, 288 P.3d 1228 (Wyo. 2012).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. It is the Wyoming Department of Insurance’s position that sales tax is included and is based on the appraised value of the car prior to the accident/loss, but there is no specific case law, statute, rule, or formal opinion or statement that expressly supports that position.
Pedestrian and Crosswalk Laws
Wyo. Stat. § 31-5-602: Vehicles must yield to pedestrian in crosswalk. Pedestrians must not step off curb and into path of vehicle when vehicle does not have time to stop. Vehicles must always yield to pedestrians in school zone crosswalk.
Wyo. Stat. § 31-5-603: Pedestrians must yield to vehicles when crossing outside crosswalk. Pedestrians must use crosswalk at intersections with traffic control devices. Pedestrians may not cross diagonally.
Summary: Where crosswalk had been obscured by repaving of street, pedestrians were not guilty of contributory negligence based on violation of statute requiring crossing at crosswalks. Calkins v. Hamme, 387 F.2d 317 (Wyo. 1967).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers not regulated.
Recovery From Third-Party: Loss of use is recoverable in Wyoming. Farmers Home Administration v. Redland, 695 P.2d 1031 (Wyo. 1985). Rental value is a practical measure used in determining damages for loss of use. Wheatland Irrigation Dist. v. McGuire, 562 P.2d 287 (Wyo. 1977). Another method may be to prove rental or useable value of the vehicle lost. Id. The fact finder must have sufficient evidence in which it can reasonably determine the amount of the loss with some degree of certainty. Id. There shouldn’t be any speculation when determining loss of use damages. Colorado Kenworth v. Archie Meek Transp. Co., 495 P.2d 1183 (Wyo. 1972). A usual method of proof to sustain this type of loss is the cost of hiring or renting another vehicle. Id. This may be interpreted to allow for loss of use even when another vehicle is not rented. There is no caselaw expressly disallowing recovery for loss of use on a total loss claim. Accordingly, there is a strong argument that such a claim can be sustained.
Rental Car Company’s Liability Insurance Primary or Excess
Summary: No case or statutory law dealing specifically with car rental companies. Terms of rental agreement and renter’s liability policy should be compared to determine which is primary.
Sudden Medical Emergencies While Driving
Sudden Emergency Doctrine. Where a person finds himself or herself confronted with a sudden emergency, which was not brought on about his own negligence, such person has a legal right to do what appears to him at the time he should do, so long as he acts in a reasonable manner as any other person would have done under similar circumstances, to avoid an injury; and if he does so act, he will not be deemed to have been negligent even though it might afterwards be apparent that some other course of action would have been safer. Roberts v. Estate of Randall, 51 P.3d 204 (Wyo. 2002).
No cases using the sudden emergency defense for a medical emergency.
Suspension of Drivers’ Licenses
Administrative Suspension: If, within 30 days after a demand for additional security, none is forthcoming, the license of the uninsured driver will be suspended by the Division. Wyo. Stat. § 31-9-202. The license will not be reinstated unless and until the driver posts the required security or, one year has elapsed and no action for damages has been filed. Wyo. Stat. § 31-9-205.
Judgment: Upon receipt of the judgment, the Division will immediately suspend the license and registration of the judgment debtor. Wyo. Stat. § 31-9-302. The suspension will continue until the judgment is stayed, satisfied, or discharged. Wyo. Stat. § 31-9-303.
Contact Information: State of Wyoming, Department of Transportation, Division of Driver Services, 5300 Bishop Blvd., Cheyenne, WY 82009-3340, (307) 777-4800 or (307) 777-4810, http://www.dot.state.wy.us/driverservices.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Wyo. Admin. Code Ins. Gen. Chap. 19 § 1 to § 7.
Summary: Insurers cannot require the use of non-OEM parts unless the parts are permanently marked in some way that identifies the manufacturer of the part. The parts must be equal in quality to their OEM counterparts, the insured must be notified that they are not required to accept the use of non-OEM parts, and the insured must accept the use of non-OEM parts in writing before they are used. The insurer’s estimate must disclose the use of non-OEM parts and that they are of equal quality to their OEM counterpart.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Legal Authority: Wyoming Governmental Claims Act (WGCA): Wyo. Stat. §§ 1-39-101 to 121 (1979). Except as provided in the WGCA, a governmental entity (i.e., state or local government body) is granted immunity from liability for any tort. Wyo. Stat. § 1-39-104.
Notice Deadlines: Written Notice of Claim must be presented with two (2) years. Wyo. Stat. § 1-39-113. Compliance with Notice of Claim requirement no longer has to be alleged in complaint. Brown v. City of Casper, 248 P.3d 1136 (Wyo. 2011). Suit must be filed within one (1) year of written Notice of Claim. Wyo. Stat. § 1-39-114.
Claims/Actions Allowed: Claims allowed for: (1) Operating motor vehicle: Wyo. Stat. § 1-39-105. (2) Operating building or park: Wyo. Stat. § 1-39-106. (3) Airport: Wyo. Stat. § 1-39-107. (4) Operating public utilities (gas, electric, water, etc.) and ground transportation: Wyo. Stat. § 1-39-108. (5) Operating hospital: Wyo. Stat. § 1-39-109. (6) Torts of police: Wyo. Stat. § 1-39-112.
Comments/Exceptions: The WGCA abolishes all judicially created categories such as governmental or proprietary functions and discretionary or ministerial acts previously used by the courts to determine immunity or liability. Exclusions from the waiver of liability are listed at W.S. 1-39-120: (1) defect in plan or design of bridge, culvert, highway, road, street, sidewalk or parking lot;(2) failure to construct or reconstruct bridge, culvert, etc.; and (3) maintenance, including maintenance to compensate for weather conditions, of any bridge, culvert, etc.
Personal Injury: $250,000 per person; $500,000 per occurrence. Governmental entity can purchase liability insurance in which case limits are extended to match limits of policy. Wyo. Stat. § 1-39-118.
Property Damage: Claim must be less than $500. Wyo. Stat. § 1-39-118(f).
Health Care: Claims against providers limited to $1 million regardless of claims or claimants. Wyo. Stat. § 1-39-1109(b).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Wyoming Governmental Claims Act (WGCA). Wyo. Stat. §§ 1-39-101 to 121 (1979). Except as provided in the WGCA, a governmental entity (i.e., state or local government body) is granted immunity from liability for any tort. Wyo. Stat. § 1-39-104.
Notice Deadlines: Written Notice of Claim must be presented with two years. Wyo. Stat. § 1-39-113. Compliance with Notice of Claim requirement no longer has to be alleged in complaint. Brown v. City of Casper, 248 P.3d 1136 (Wyo. 2011). Suit must be filed within one year of written Notice of Claim. Wyo. Stat. § 1-39-114.
Claims/Actions Allowed: Claims allowed for:
Operating motor vehicle: Wyo. Stat. § 1-39-105.
Operating building or park: Wyo. Stat. § 1-39-106.
Airport: Wyo. Stat. § 1-39-107
Operating public utilities (gas, electric, water, etc.) and ground transportation: Wyo. Stat. § 1-39-108.
Operating hospital: Wyo. Stat. § 1-39-109.
Torts of police: Wyo. Stat. § 1-39-112.
Comments/Exceptions: The WGCA abolishes all judicially created categories such as governmental or proprietary functions and discretionary or ministerial acts previously used by the courts to determine immunity or liability. Exclusions from the waiver of liability are listed at W.S. 1-39-120:
(1) defect in plan or design of bridge, culvert, highway, road, street, sidewalk or parking lot;
(2) failure to construct or reconstruct bridge, culvert, etc.; and
(3) maintenance, including maintenance to compensate for weather conditions, of any bridge, culvert, etc.
Damage Caps: For personal injury: $250,000 per person; $500,000 per occurrence. State can purchase liability insurance in which case limits are extended to match limits of policy. Wyo. Stat. § 1-39-118. For property damage, claim must be less than $500. Wyo. Stat. § 1-39-118(f).
General Tort Laws/Statutes
Prohibits Broad Indemnity and Intermediate Indemnity. Applies to any agreement pertaining to any “well for oil, gas, or water, or mine for any mineral.”
Wyoming is one of four states that has enacted an anti-indemnity statute that specifically deals with the oilfield services industry (the others are Texas, New Mexico, and Louisiana).
The Wyoming Oilfield Anti-Indemnity Act provides that any indemnity agreement pertaining to any well for oil, gas or water, or mine for any mineral, which purports to relieve the indemnitee from loss or liability for his own negligence, is against public policy and is void and unenforceable. Wyo. Stat. § 30-1-131.
Unlike the Louisiana and New Mexico Acts, WOAIA does not include language expressly prohibiting the parties from including waivers of subrogation or provisions that require the indemnitee to be named as an additional insured on the indemnitor’s insurance policy.
Pure Several Liability. Several liability with each defendant only paying their share of the liability. Wyo. Stat. § 1-1-109; Pinnacle Bank v. Villa, 100 P.3d 1287 (Wyo. 2004).
Joint and several liability has been abolished. No right of contribution exists. Anderson Highway Signs & Supply, v. Close, 6 P.3d 123 (Wyo. 2000).
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s own negligence will never bar recovery completely, but may limit their recovery in proportion to their liability. Wyo. Stat. § 1-1-109(b).
Dog Bite Laws
Dog owner will be liable if the victim can prove negligence or knowledge of the dog’s dangerous propensities. Borns ex rel. Gannon v. Voss, 70 P.3d 262 (Wyo. 2003).
Economic Loss Doctrine
Majority Rule. Recovery under tort law is not allowed where the claim is solely for economic damages unaccompanied by personal injuries or damage to other property. Only theories allowed are breach of warranty or breach of contract. Continental Ins. Co. v. Page Eng’g Co., 783 P.2d 641 (Wyo. 1983).
Willful Misconduct. Liability imposed on parents if child willfully damages or destroys property. Wyo. Stat. § 14-2-203.
The limit of liability is $2,000.00 plus costs. Child must be between 10 and 18.
Tort of Spoliation: Rather than recognize an independent tort claim for fraudulent creation of evidence (or spoliation of evidence), Wyoming law allows courts to draw an adverse inference against a party responsible for losing or destroying evidence. Coletti v. Cudd Pressure Control, 165 F.3d 767, 775-776 (10th Cir. 1999) (applying Wyoming law).
Adverse Inference: It is well-settled that a party’s bad-faith with holding, destruction, or alteration of a document or other physical evidence relevant to proof of an issue at trial gives rise to a presumption or inference that the evidence would have been unfavorable to the party responsible for its non-production, destruction, or alteration. The Wyoming Supreme Court stated that, “for example, in a negligence action, where a party demonstrates that evidence was concealed or destroyed in bad faith (either deliberately or with reckless disregard for its relevance), that fact should be admitted, counsel should be permitted to argue the inference to the jury, the court should instruct the jury as to the inference, and the jury may infer that the fact would have helped prove negligence; a court’s refusal may be an abuse of discretion. Indeed, some courts have held that such destruction creates a presumption that shifts the burden of production, or even persuasion, to the party responsible for the destruction.” Abraham v. Great Western Energy, LLC, 101 P.3d 446, 455-456 (Wyo. 2004).
Sanctions: “Where the evidence, rather than being destroyed, has been tampered with in bad faith, a court has the option of excluding it, thus denying its use by the tampering party. Where the alteration is not in bad faith and is not so egregious, however, the evidence itself should be admitted, together with information relating to how it was altered, and counsel may argue the issue to the jury. Id. Where the loss or destruction of evidence is not intentional or reckless, by contrast, some courts give the trial court discretion to admit or exclude testimony relating to the missing evidence, and discretion to give or withhold a ‘missing evidence’ instruction and a court should refuse to give such instruction if the non-produced evidence is cumulative or of marginal relevance. Id.”
In a case that warrants imposition of a sanction against the spoliating party, the court may choose to instruct the jury on the “spoliation inference,” i.e., inform the jury that the lost evidence is to be presumed unfavorable to that party; preclude the spoliating party from introducing expert testimony concerning testing on the missing product or other evidence concerning the product; or dismiss the plaintiff’s claim or the defendant’s defense or grant summary judgment to the innocent party. Abraham v. Great Western Energy, LLC, 101 P.3d at 455-456, citing Richard E. Kaye, Annotation, Effect of Spoliation of Evidence in Products Liability Action, 102 A.L.R. 5th 99-100 (2002).
Statute of Limitations
Personal Property4 YearsWyo. Stat. § 1-3-105(a)(iv)(C)
Personal Injury/Death4 YearsWyo. Stat. § 1-3-105(a)(iv)(C)
Personal Injury/Wrongful Death2 YearsWyo. Stat. § 1-38-102(d)
Personal Injury/Med Malpractice2 YearsWyo. Stat. § 1-3-107(a)(I) and (a)(iv)
Personal Injury/Med Malpractice/Discovered in 2nd Year6 Mo. Ext.Wyo. Stat. § 1-3-107(a)(I) and (a)(iv)
Breach of Contract/Written10 YearsWyo. Stat. § 1-3-105(a)(i)
Breach of Contract/Oral8 YearsWyo. Stat. § § 1-3-105(a)(ii)(A)
Breach of Contract/Sale of Goods4 YearsWyo. Stat. § 34.1-2-275
Statute of Repose/ProductsN/AN/A
Statute of Repose/Real Property10 YearsWyo. Stat. § 1-3-111*
Breach of Warranty/U.C.C.4 YearsWyo. Stat. § 34.1-2-725
Workers’ Comp Third Party Case4 YearsWyo. Stat. § 27-14-105
Strict Product Liability4 YearsWyo. Stat. § 1-3-105(a)(iv)(C); Ogle v. Caterpillar Tractor Co., 716 P.2d 334 (Wyo. 1986).
Statute of Limitations Exceptions
*10 years from substantial completion of improvement to real property. Wyo. Stat. § 1-3-111.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: Personal Injury: 4 Years. W.S. § 1-3-105(a)(iv)(C). Wrongful Death: 2 Years. W.S. § 1-38-102(d). Medical Malpractice: 2 Years, unless discovery in second year, then extended by 6 months. Wyo. St. §§ 1-3-107(a)(i) and (a)(iv). Subrogation of Medical and Disability Benefits are allowed. Stilson v. Hodges, 934 P.2d 736 (Wyo. 1997).
Made Whole Doctrine does not apply. Wyoming has not adopted the Made Whole Doctrine. See e.g., Nat’l Union Fire Co. of Pittsburgh, PA. v. Toland, 2016 WL 873005, (D. Wyo. Feb. 17, 2016). Common Fund Doctrine does not apply. Bd. of County Comm’rs of County of Platte v. State ex rel. Yeadon, 971 P.2d 129 (Wyo. 1998) (Court decided that Common Fund Doctrine, an issue of first impression, was not properly raised).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: Bunting v. Jamison, 984 P.2d 467 (Wyo. 1999).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
Failure To Disclose A Basis For Bad Faith: Third-party claimants do not have a direct cause of action against an insurer for bad faith, either in contract or tort. Herrig v. Herrig, 844 P.2d 487 (Wyo. 1992).
One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. Wyo. Stat. Ann. § 7-3-702.
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 4 years for personal injury/strict liability. Wyo. Stat. §1-3-105(a)(iv)(C). Wrongful death is 2 years. Wyo. Stat. §1-38-102(d). Statute of Repose is 10 years. Wyo. Stat. §1-3-111.
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Pure Comparative. Wyo. Stat. § 1-1-109(b).
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: Limited
Innocent Seller Statute: No.
Joint and Several Liability: No. Wyo. Stat. § 1-1-109.
Available Defenses: Assumption of Risk; Presumption; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Government Contractor Defense; Compliance With Government Standards; Seatbelts; Alcohol/Drugs; Sophisticated User.
Restatement 2nd or 3rd?: Restatement 2nd
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Condominium/Co-Op Waiver of Subrogation Laws
No waiver of subrogation required. Wyo. Stat. § 34-20-101 (1977), et seq. “Condominium Ownership Act”.
Damage to Property Without Market Value
Service Value: Measure of damages for loss or conversion of personal property is fair market value of property or, in cases of goods having no ascertainable market value, actual economic value to owner. Broyles v. Broyles, 711 P.2d 1119 (Wyo. 1985).
Intrinsic Value: “…as it is sometimes said, its value to the owner; excluding, however, any mere fanciful or sentimental value which might be placed thereon.” Shikany v. Salt Creek Transp. Co., 45 P.2d 645 (Wyo. 1935).
Sentimental Value: “…as it is sometimes said, its value to the owner; excluding, however, any mere fanciful or sentimental value which might be placed thereon.” Shikany v. Salt Creek Transp. Co., 45 P.2d 645 (Wyo. 1935).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
Although Wyoming has not directly addressed this issue, the Wyoming Supreme Court has intimated that it views a contractual provision to provide specific insurance as a waiver of subrogation rights with regard to the risk insured against. Berger v. Teton Shadows, Inc., 820 P.2d 176 (Wyo. 1991).
In the aftermath of an environmental loss which implicates an insured’s property and liability insurance policies, the property insurer which has paid benefits may recover them from the liability insurer. Compass Ins. Co. v. Cravens, Dargen and Co., 748 P.2d 724 (Wyo. 1988) (in essence permitting a property insurer to subrogate against its insured).
The applicable Wyoming statute covering restitution allows for recovery against a liable criminal defendant by the “victim” affected by the criminal conduct. Wyo. Stat. Ann. § 7‐9‐101(a)(v). Strangely, an insurer which has paid part of a victim’s pecuniary damages can qualify as a “victim” and, therefore, have a claim to restitution payments, but only if it does not have a right of subrogation and the insured has no duty to pay the proceeds of restitution to the insurer. Wyo. Stat. Ann. § 7‐9‐101(a)(v); Meerscheidt v. State, 931 P.2d 220 (Wyo. 1997).
Made Whole Doctrine
There are no reported decisions dealing with the Made Whole Doctrine in the State of Wyoming. To make matters worse, the 10th Circuit, in which Wyoming sits, has yet to decide whether the 10th Circuit will adopt the Made Whole Doctrine under federal common law for interpretation of ERISA Plans. Alves v. Silverado Foods, Inc., 6 Fed. Appx. 694 (10th Cir. 2001). The 10th Circuit recognized the Made Whole Doctrine as a creature of equitable insurance law wherein an insured is entitled to receive recovery for a loss and a subrogated carrier is not entitled to subrogate until the insured has been made whole for all of its damages, yet it failed to adopt this Doctrine. Id.
Despite the complete lack of any precedent employing the Made Whole Doctrine in Wyoming, some plaintiff’s lawyers are trying to apply the doctrine by recycling a 1981 letter written by State District Judge Terrence O’Brien (Letter dated August 31, 1981 from Wyoming District Judge Terrence O’Brien to several judges in the pending case of Blue Cross and Blue Shield v. Rasmussen, et. al., Civil No. 11165), which purports to apply the Made Whole Doctrine in an unrecorded case styled Rasmussen, et. al., which involved health insurance benefits provided by Blue Cross and Blue Shield pursuant to a Master Contract between the employee and employer and cited to the Washington Supreme Court opinion of Thiringer for the proposition that Blue Cross could not recover its $12,000 in medical benefits because the third-party carrier had liability limits of only $25,000 and the insured’s damages were in excess of that amount. Thiringer v. American Motors Ins. Co., 588 P.2d 191 (Wash. 1978) (This case established the Made Whole Doctrine in the State of Washington.) The letter does not even constitute a trial court order and is of no precedential value in Wyoming.
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: Common law CSR. Plaintiff’s receipt of collateral benefits does not reduce his recovery. See Haderlie v. Sondgeroth, 866 P.2d 703 (Wyo. 1993).
Recovery Of Medical Expenses Rule:
Private Insurance: No published state court decisions on this subject. Federal courts have held that evidence of the amount actually paid is inadmissible. Federal district court found that the proper measure of damages is the reasonable value of the medical services, but it does not appear the defendant sought to establish the reasonable value by means other than referring to the paid amount. Lurus v. Rissler & McMurry Co., No. 02-CV-174-J (D. Wyo. 2004).
Medicare/Medicaid: No published state court decisions on this subject. Federal district court has held that discounted amount of medical expenses does not reflect the reasonable value of services rendered. Discounted rate reflects the third-party payor’s negotiating power and the fact that providers enjoy prompt payment, assured collectability. Plaintiff can recover the full billed amount as opposed to the amount paid by Medicare for the services rendered, relying on the CSR. Seely v. Archuleta, 2013 WL 1137952 (D. Colo. 2013).
Workers’ Compensation: CSR excludes evidence of medical payments made by workers’ compensation carrier. Prager v. Campbell County Mem. Hosp., 731 F.3d 1046 (10th Cir. 2013) (medical malpractice).
Employee Leasing Laws
The Wyoming Workers’ Compensation Act defines a temporary service contractor as an entity that employs individuals directly for the purpose of furnishing services of the employed individuals on a temporary basis to others. Wyo. St. § 27-14-102(a). The Act also designates that the employer is considered to be the entity utilizing the services of a worker furnished by another, except in the instance of a temporary service contractor. Wyo. St. § 27-14-102(a). The entity considered the employer is immune from third-party actions by virtue of the exclusive remedy provisions of the Act.
Hospital Lien Laws
Statute: No statutory provision in Wyoming.
Comments: Wyoming is one of nine states without statewide lien laws.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP. (Monopolistic State Fund).
Statutory Employer Law: Section 27-14-206(e) requires a general contractor which subcontracts all or part of a contract to a subcontractor to be responsible for payment of premiums if the subcontractor does not provide such coverage.
Comments: If the general contractor actually provides for payment of the premiums, it enjoys exclusive remedy immunity but can recover the amount of the premiums it paid, along with necessary expenses, from the subcontractor primarily liable for the premiums. Wyo. Stat. § 27-14-206(e).
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Undecided.
Statute/Case Law: Gates v. Richardson, 719 P.2d 193 (Wyo. 1986).
Rule Summary: There is no authority or precedent regarding the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor. However, in a case involving the extension of the tort of negligent infliction of emotional distress, referring to liability insurance premiums said, “[i]mpose upon the public the unwarranted economic burden of increased insurance premiums to fund insurers’ costs in paying and litigating such claims.”
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 27-14-105 describes a workers’ compensation carrier’s subrogation lien as follows:
… the total amount of the state’s claim for reimbursement under this section and for all current and future benefits under this act. Wyo. Stat. § 27-14-105.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: Wyo. Stat. § 27-14-105
Waiver Allowed? No. Monopolistic State.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided.
Other Applicable Law: Wyoming is one of four monopolistic workers’ compensation states. Coverage available only through the Wyoming Workers’ Safety and Compensation Division of the Wyoming Department of Employment.
Statute of Limitations: 4 Years. Wyo. Stat. § 27-14-105.
Can Carrier Sue Third Party Directly: Yes, 15 days notice.
Right to Intervene: Yes.
Recovery from UM/UIM Benefits: Undecided.
Subrogation Against Medical Malpractice: Undecided.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: First money right of recovery.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: No.
Future Credit: No, must recover in third-party suit.
Auto No-Fault: No.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute states that employee includes legally employed aliens. Wyo. Stat. Ann. § 27-14-102(a)(vii).
Case Law: L&L Enters v. Arellano (In re Arellano), 344 P.3d 249 (Wyo. 2015); Felix v. State ex rel. Workers’ Safety & Comp. Div., 986 P.2d 161 (Wyo. 1999).
Comments/Explanation/Other: Under the new 2015 Wyoming Supreme Court ruling in Arellano, an employer must only reasonably believe, based upon documentation in its possession at the date of hire and of the injury, that the employee is authorized to work in the U.S. and the illegal alien will be entitled to benefits. Felix ruled that the employee was not authorized to work by the Immigration and Naturalization Service (INS) and, therefore, is not an employee entitled to workers’ compensation benefits.