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In re Wrongful death action of Knight

Supreme Court of Wyoming

January 14, 2015

In Re: Wrongful death action of Jerome C. Knight, by and through his wrongful death personal representative, GARRET KNIGHT, Appellant (Plaintiff),
v.
THE ESTATE OF VICTOR McCOY, deceased, and M & M WELDING SERVICES, LLC, a Wyoming Limited Liability Company, Appellees (Defendants)

Appeal from the District Court of Washakie County. The Honorable Robert E. Skar, Judge.

Representing Appellant: John P. Worrall of Worrall and Greear, P.C., Worland, WY.

Representing Appellee: Curtis B. Buchhammer of Buchhammer & Kehl, P.C., Cheyenne, WY.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

OPINION

Page 413

HILL, Justice.

[¶1] This appeal arises out of a wrongful death action following an automobile accident in which both Jerome Knight (Decedent) and Victor McCoy (McCoy) were killed. Decedent was employed by M& M Welding Services, LLC (M& M), and McCoy was one of the owners of M& M. McCoy was driving the vehicle when the accident occurred, and Garret Knight (Plaintiff), as Decedent's personal representative, filed a wrongful death action against the Estate of Victor McCoy (the McCoy Estate) and M& M. The district court granted summary judgment in favor of M& M on grounds of employer immunity under the Wyoming Worker's Compensation Act and summary judgment in favor of the McCoy Estate on grounds of defective service of process, lack of personal jurisdiction, and expiration of the statute of limitations. We affirm in part and reverse in part.

ISSUES

[¶2] Plaintiff states the issues on appeal as follows:

I. Did the District Court correctly determine that Worker's Compensation Coverage existed such as to bar any action by the Plaintiff vs. M& M Welding Services, LLC?
II. Did the District Court err in granting a Summary Judgment based upon an unsigned Summons which was presented to Kathryn McCoy as the Personal Representative of the Estate of Victor McCoy based upon lack of jurisdiction?
III. Did Appellee[s] waive [their] jurisdictional defense by failing to raise [it] in their first W.R.C.P. 12(b) Motion?

FACTS

[¶3] On September 29, 2010, Decedent, who had been employed by M& M for only three or four days, accompanied his supervisor McCoy, who was also an owner in M& M, to a work site south of Worland, Wyoming. At approximately 4:00 p.m., Decedent and McCoy departed from the work site, and with McCoy driving, they headed back to Worland. At approximately 4:20 p.m., about two miles south of Worland, McCoy crossed the highway's center line and collided head on with an oncoming semi-trailer truck. Both Decedent and McCoy immediately died of their injuries. Toxicology tests performed after the accident showed that McCoy was under the influence of a significant amount of methamphetamine at the time of his death.

[¶4] On August 10, 2012, Katherine McCoy was appointed as Administrator of the McCoy Estate. On August 21, 2012, Plaintiff filed a wrongful death action against the McCoy Estate and M& M (collectively Defendants). On September 5, 2012, Katherine McCoy was asked to accept service of Plaintiff's complaint and was at that same time provided with a summons, a copy of the complaint, and an acceptance of service document.[1] On September 10, 2012, the acceptance

Page 414

of service bearing Ms. McCoy's signature was filed. The document read, with emphasis in the original:

COMES NOW, Katherine McCoy, and in the above-entitled cause, and hereby accepts and acknowledges service of the Complaint and Summons, and voluntarily enters her appearance on behalf of The Estate of Victor McCoy, Defendant, herein and consents that said cause may be tried forthwith at the convenience of the Court.

[¶5] On September 19, 2012, Plaintiff filed an amended complaint to specify compliance with Wyo. Stat. Ann. § 27-14-105, which requires notification to the Wyoming Attorney General and the Director of the Wyoming Worker's Compensation Division of any legal action related to an injury for which workers' compensation benefits were paid. On October 1, 2012, Plaintiff served the amended complaint on M& M by serving the amended complaint and a summons on Ashley Morris, the other co-owner of M& M. On October 12, 2012, Plaintiff served the amended complaint on the McCoy Estate by serving the amended complaint and a summons on Katherine McCoy.

[¶6] On October 15, 2012, Defendants filed their Answer of Defendants to Amended Complaint. Included in Defendants' affirmative defenses, Defendants alleged: process was defective and insufficient as to each Defendant; improper service of process; and lack of personal jurisdiction over either Defendant.

[¶7] On December 31, 2012, Defendants filed a W.R.C.P. 12(b)(6) motion to dismiss alleging a failure to state a claim upon which relief can be granted. Also on December 31, 2012, Defendants filed a motion for summary judgment. Through the motion to dismiss, Defendants alleged that the McCoy Estate was immune from suit under the Wyoming Worker's Compensation Act. Through the summary judgment motion, Defendants alleged that M& M was immune from suit under the Wyoming Worker's Compensation Act, or alternatively that Plaintiff had elected workers' compensation benefits and was therefore estopped from asserting claims against M& M.

[¶8] The district court held a hearing on Defendants' motions on May 29, 2013, and on July 24, 2013, the court issued its decision. The court found that M& M was immune from suit under the Wyoming Worker's Compensation Act and granted Defendants' summary judgment motion as to claims against M& M. The court found that genuine issues remained on the question whether claims against the McCoy Estate were barred by the Worker's Compensation Act and denied Defendants' summary judgment motion as to claims ...


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