from the District Court of Sweetwater County The Honorable
Richard L. Lavery, Judge
Representing Appellant: Corinne E. Rutledge and Erin A.
Barkley of Lathrop & Rutledge, P.C., Cheyenne, WY.
Argument by Ms. Barkley.
Representing Appellee: G. Bryan Ulmer III, Emily R. Rankin,
and Michael F. Lutz of The Spence Law Firm, LLC, Jackson, WY.
Argument by Mr. Lutz.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Darrell Menapace filed a medical malpractice complaint
against Memorial Hospital of Sweetwater County (the Hospital)
alleging the Hospital was vicariously liable for the acts or
omissions of a physician who worked at the hospital as an
independent contractor. The Hospital moved for summary
judgment on the ground that the physician was not a Hospital
employee and the Hospital was therefore immune from liability
for his acts or omissions. The district court found that the
Hospital waived its immunity by purchasing liability
insurance and on that basis denied the Hospital's summary
judgment motion. We reverse.
The Hospital states the issue on appeal as:
Was Memorial Hospital of Sweetwater County "legally
responsible" for the acts or omissions of alleged
ostensible agent Dr. Lin Miao at the time of the treatment at
issue, such that it waived its immunity to ostensible agency
claims under the insurance exception at Wyo. Stat. Ann.
Memorial Hospital of Sweetwater County is a government entity
operating in Rock Springs, Wyoming. The Hospital carries a
liability insurance policy, issued by UMIA Insurance, Inc.
(the UMIA Policy), which includes the following coverage for
medical professional liability claims against the Hospital:
UMIA agrees to pay on behalf of the insured
all sums which the insured shall become
legally obligated to pay as damages because
of any claim or claims * *
* arising out of the performance of medical
professional services rendered or which should have
been rendered * * * by the insured or any
person for whose acts or omissions the
insured is legally responsible. (emphasis in
original to indicate defined policy terms)
In 2012, the Hospital entered into a contract with EmCare,
Inc., which provided that for a period of three years, EmCare
would be the exclusive provider of hospitalist physician
services for the Hospital. One of the hospitalist physicians
provided pursuant to that contract was Dr. Lin Miao. Dr. Miao
was not an EmCare employee, but was a locum tenens physician
provided by EmCare to cover EmCare shifts at the
On June 6, 2013, Darrell Menapace was admitted to the
Hospital with complaints of numbness and cramping in his legs
and an inability to walk and was seen by Dr. Miao. Dr. Miao
did not request a vascular consult and discharged Mr.
Menapace on June 8, 2013. On June 11, 2013, Mr. Menapace saw
a nurse practitioner, Angela Slinden, who scheduled him for a
vascular consult to take place two and a half days later. On
June 12, 2013, Mr. Menapace self-referred to the University
of Utah where he was diagnosed with acute limb ischemia,
sepsis, and acute renal failure, and underwent emergent
bilateral above the knee amputations.
On May 6, 2015, Mr. Menapace filed a complaint against the
Hospital, Dr. Miao, and Angela Slinden. Mr.
Menapace's claims against the Hospital included, among
others, a claim for vicarious liability for Dr. Miao's
care and treatment of Mr. Menapace. The Hospital answered the
complaint and asserted several affirmative defenses,
including: the Hospital is not liable for actions of
independent contractors; the Hospital is not liable for
actions of ostensible agents; and the Hospital is a
governmental entity immune from the claims against it.
On June 30, 2016, the Hospital moved for partial summary
judgment against Mr. Menapace's vicarious liability
claims. In support of the motion, the Hospital asserted that
under the Wyoming Governmental Claims Act (WGCA), the
Hospital "cannot be held vicariously liable for the acts
of a physician who was not its employee." On November 7,
2016, the district court issued an order denying the
Hospital's motion. The court concluded that the
Hospital's purchase of liability insurance, and in
particular its coverage for "any person for whose acts
or omissions" the Hospital "is legally responsible,
" acted as a waiver of its immunity and extended its
liability under the WGCA to include liability for the acts or
omissions of the Hospital's apparent agents, including
On December 7, 2016, the Hospital filed a timely Notice of
Appeal to this Court.
We review the district court's summary judgment ruling de
We review a grant of summary judgment deciding a question of
law de novo. Sky Harbor Air Serv., Inc. v. Cheyenne
Reg'l Airport Bd., 2016 WY 17, ¶ 40, 368 P.3d
264, 272 (Wyo. 2016). In doing so, "We review a summary
judgment in the same light as the district court, using the
same materials and following the same standards."
Thornock v. PacifiCorp, 2016 WY 93, ¶ 10, 379
P.3d 175, 179 (Wyo. 2016) (quoting Rogers v. Wright,
2016 WY 10, ¶ 7, 366 P.3d 1264, 1269 (Wyo. 2016)).
"No deference is accorded to the district court on
issues of law, and we may affirm the summary judgment on any
legal grounds appearing in the record." Cont'l
Western Ins. Co. v. Black, 2015 WY 145, ¶ 13, 361
P.3d 841, 845 (Wyo. 2015). "The summary judgment can be
sustained only when no genuine issues of material fact are
present and the moving party is entitled to judgment as a
matter of law." Id. * * *
Halling v. Yovanovich, 2017 WY 28, ¶ 12, 391
P.3d 611, 616 (Wyo. 2017).
This appeal requires that we interpret an insurance policy,
which is a question of law for this Court. North Fork
Land & Cattle, LLLP v. First Am. Title Ins. Co.,
2015 WY 150, ¶ 10, 362 P.3d 341, 345 (Wyo. 2015). We
interpret insurance policies in the same manner as any other
contract. North Fork Land & Cattle, ¶ 14,
362 P.3d at 346. Our review begins with the document's
plain language, and
we interpret the contract as a whole and read each provision
in light of the others to find the plain meaning. We avoid
interpreting provisions in a way that makes the other
provisions inconsistent or meaningless. Finally,
"[b]ecause we use an objective approach to interpret
contracts, evidence of the parties' subjective intent is
not relevant or admissible in interpreting a contract."
Gumpel v. Copperleaf Homeowners Ass'n, Inc.,
2017 WY 46, ¶ 29, 393 P.3d 1279, 1290 (Wyo. 2017)
(quoting Thornock v. PacifiCorp, 2016 WY 93, ¶
13, 379 P.3d 175, 180 (Wyo. 2016)).
The question on summary judgment, and now on appeal, is
whether the Hospital is vicariously liable for the acts or
omissions of its apparent agent, Dr. Miao, in his treatment
of Mr. Menapace. Although a hospital generally is
vicariously liable for the acts or omissions of its apparent
agents, Sharsmith v. Hill, 764 P.2d 667, 671-72
(Wyo. 1988), we have held that a county hospital, as a
governmental entity, is immune under the WGCA from liability
for the acts or omissions of an apparent agent.
Pfeifle, ¶ 26, 317 P.3d at 580. The WGCA does,
however, allow a governmental entity to purchase liability
insurance "covering liability which is not authorized by
[the WGCA]" and to thereby extend its liability to the
extent of that coverage. Wyo. Stat. Ann. §