In Re: Wrongful Death Action of Jerome C. Knight, By and Through His Wrongful Death Personal Representative, Garret Knight , 2015 WY 9 ( 2015 )

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 9
OCTOBER TERM, A.D. 2014
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. S-14-0099
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.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
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
1
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 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’
1
The record contains Ms. McCoy’s affidavit, and in that affidavit, Ms. McCoy states that she was asked
to accept service of the complaint. The affidavit does not specify who asked Ms. McCoy to accept
service, and neither the affidavit nor the record provides any other detail concerning Ms. McCoy’s receipt
and execution of the acceptance of service.
2
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 against the McCoy Estate. With respect to Defendants’ motion to dismiss claims
against the McCoy Estate, the court ruled that
while it is yet to be determined whether the allegations in
Plaintiff’s Complaint amount to an intentional act to cause
physical harm or injury to the injured employee, the facts as
pled in the Complaint give fair notice of the claim to
Defendants and are sufficient to withstand a W.R.C.P.
12(b)(6) motion[.]
[¶9] On August 28, 2013, the McCoy Estate filed a second summary judgment motion.
Through its second summary judgment motion, the McCoy Estate alleged that it was
entitled to judgment because: 1) Plaintiff named the wrong defendant when it named the
McCoy Estate as Defendant (instead of Katherine McCoy, in her capacity as
Administrator of the McCoy Estate); 2) process was defective because the summons for
the amended complaint was not issued under the seal of the court, was not addressed to
the named defendant, and was addressed to Katherine McCoy individually as opposed to
in her official capacity as Administrator; and 3) the statute of limitations had expired.2
[¶10] The district court heard argument on the McCoy Estate’s second summary
judgment motion on December 18, 2013, and on January 10, 2014, the court issued an
order granting the motion. The court ruled:
1. Plaintiff’s naming of the Estate of Victor
McCoy as the party-defendant, as opposed to Katherine
McCoy in her capacity as the personal representative of that
estate, was not fatal and could be remedied through
amendment of the caption.
2. The original complaint and amended complaint
in this matter are substantively the same and assert the same
claim against the Defendant.
3. The summonses that accompanied the
complaint and amended complaint were insufficient, did not
comply with Rule 4, W.R.C.P., deprive the Court of personal
jurisdiction over the Defendant, and are fatal to Plaintiff’s
claim against Defendant.
2
The McCoy Estate also argued in its second summary judgment motion that the summons served with
the original complaint was defective for a number of reasons. It primarily focused, though, on the second
summons and amended complaint, contending that the defects in the original summons were rendered
moot by the second summons.
3
4. The Defendant timely raised defenses
associated with the insufficiencies of the summonses and
personal jurisdiction.
5. The statute of limitations on Plaintiff’s claim
has expired and there is no savings clause that applies to
either toll or extend the applicable statute of limitations.
[¶11] On February 10, 2014, the district court, following Defendants’ W.R.C.P. 58
submission of a proposed order, entered its order on Defendants’ first summary judgment
motion and motion to dismiss. Plaintiff timely appealed the orders granting Defendants’
dispositive motions.
STANDARD OF REVIEW
[¶12] We review orders granting summary judgment using the following well-
established standard of review:
We review a summary judgment in the same light as the
district court, using the same materials and following the
same standards. We examine the record from the vantage
point most favorable to the party opposing the motion, and we
give that party the benefit of all favorable inferences that may
fairly be drawn from the record. A material fact is one which,
if proved, would have the effect of establishing or refuting an
essential element of the cause of action or defense asserted by
the parties. If the moving party presents supporting summary
judgment materials demonstrating no genuine issue of
material fact exists, the burden is shifted to the non-moving
party to present appropriate supporting materials posing a
genuine issue of a material fact for trial. We review a grant
of summary judgment deciding a question of law de novo and
afford no deference to the district court’s ruling.
Meyer v. Miller, 2014 WY 91, ¶ 15, 330 P.3d 263, 267 (Wyo. 2014) (quoting Estate of
Dahlke ex rel. Jubie v. Dahlke, 2014 WY 29, ¶ 26, 319 P.3d 116, 123–24 (Wyo. 2014)).
DISCUSSION
A. M&M’s Employer Immunity
[¶13] The district court found undisputed evidence that M&M employed Decedent and
paid workers’ compensation premiums on his behalf. Based on those findings, the court
concluded that M&M’s employer immunity under the Wyoming Worker’s Compensation
4
Act barred Plaintiff’s action against M&M as a matter of law. Plaintiff contends that a
question of fact exists as to whether Decedent was properly included on M&M’s payroll
at the time of the accident and that the court therefore erred in ruling M&M’s employer
immunity barred Plaintiff’s wrongful death claim. We find no error in the court’s ruling
on M&M’s immunity.
[¶14] The Wyoming Constitution makes workers’ compensation benefits an employee’s
sole and exclusive remedy against his or her employer:
The right of each employee to compensation from the
[worker’s compensation] fund shall be in lieu of and shall
take the place of any and all rights of action against any
employer contributing as required by law to the fund in favor
of any person or persons by reason of the injuries or death.
Wyo. Const. art. 10, § 4; see also Clark v. Industrial Co. of Steamboat Springs, Inc., 818
P.2d 626, 628-29 (Wyo. 1991).
[¶15] The Wyoming Worker’s Compensation Act codifies an employer’s immunity as
follows:
(a) The rights and remedies provided in this act for an
employee including any joint employee, and his dependents
for injuries incurred in extrahazardous employments are in
lieu of all other rights and remedies against any employer and
any joint employer making contributions required by this act,
or their employees acting within the scope of their
employment unless the employees intentionally act to cause
physical harm or injury to the injured employee, but do not
supersede any rights and remedies available to an employee
and his dependents against any other person.
****
(c) This act does not limit or affect any right or action
by any employee and his dependents against an employer for
injuries received while employed by the employer when the
employer at the time of the injuries has not qualified under
this act for the coverage of his eligible employees, or having
qualified, has not paid the required premium on an injured
employee’s earnings within thirty (30) days of the date due.
When an employee’s employment starts within the same
month as the injury, the status of delinquency or not
contributing shall not apply until after the regular payroll
reporting date.
5
Wyo. Stat. Ann. § 27-14-104 (LexisNexis 2013).
[¶16] This Court has recognized that an employer’s immunity under the Act is absolute
regardless of whether the employer’s conduct “amounted to culpable negligence or an
intentional tort.” Wessel v. Mapco, Inc., 752 P.2d 1363, 1367 (Wyo. 1988) (citing Parker
v. Energy Development Co., 691 P.2d 981 (Wyo. 1984)). “An entity asserting the
defense of immunity under the worker’s compensation statute must establish that it is (1)
an employer, (2) who pays into the worker’s compensation fund, (3) as required by law.”
Clark, 818 P.2d at 629 (citing Stratman v. Admiral Beverage Corp., 760 P.2d 974, 979
(Wyo.1988)).
[¶17] In support of its summary judgment motion, M&M submitted the affidavit of
Ashley Morris, one of M&M’s co-owners. Ms. Morris attested:
2. On or about August 2, 2010, M&M Welding
Services, LLC (hereinafter “M&M”), a Wyoming limited
liability company, was formed. I, along with Victor McCoy,
were the only members of M&M.
3. As a member of M&M, part of my duties
included, but were not limited to, doing the bookkeeping and
paying bills, procuring worker’s compensation for employees
of M&M, and reviewing and processing any claims for
worker’s compensation that were made by M&M employees.
4. In late September, Jerome C. Knight became
employed by M&M. Jerome C. Knight maintained that
employment through the date, and at the time of, his death on
September 29, 2010.
5. On September 29, 2010, as part of their work
duties with M&M, Victor McCoy and Jerome C. Knight were
returning to Worland from a work site. On that date, Victor
McCoy and Jerome C. Knight were involved in an
automobile accident and they both died from injuries that
were sustained in the accident.
6. From its inception, M&M had a workers’
compensation account with Wyoming Workers’
Compensation Division. Because Jerome C. Knight began
his employment with M&M prior to the workers’
compensation reporting date for the month of his hire, which
was September of 2010, premium payments to Wyoming’s
Workers’ Compensation Division were not due for him until
the following reporting period in October of 2010. From the
time of his hire, it was always intended by M&M that Jerome
C. Knight, (sic) would be covered by Wyoming’s Workers’
6
Compensation. In fact, it was my understanding that, given
the nature of his employment, that M&M was required to
procure workers’ compensation on Jerome C. Knight.
7. In October of 2010, premium was paid to
Wyoming’s Workers’ Compensation Division for Jerome C.
Knight. As part of my duties with M&M, I personally
prepared the check and paid that workers’ compensation
premium from a bank account owned by M&M. As part of
my duties with M&M, I also prepared a report of injury for
Wyoming’s Workers’ Compensation Division that pertained
to the death of Jerome C. Knight from the September 29,
2010, automobile accident.
8. A representative of Jerome C. Knight thereafter
filed a claim for benefits with Wyoming Workers’
Compensation Division that consisted of funeral expenses in
the amount of $9,638. As part of my duties with M&M, I
was made aware of the claim and lodged no objection on
behalf of M&M to that claim for benefits. After the worker’s
compensation claim was presented on behalf of Jerome C.
Knight, Wyoming Workers’ Compensation Division
approved the claim and paid a benefit in the amount of $9,353
for funeral expenses.
9. Attached hereto as Exhibit “1” is a true and
correct copy of the “Employer's Monthly Claims Statement”
for the month of November 2010 that was received by M&M
from Wyoming Workers Safety and Compensation Division.
The statement was personally received and reviewed by me as
part of my regular duties with M&M. It was, and remains,
my understanding that Exhibit “1” is the notice of the final
determination by Wyoming’s Workers’ Compensation
Division to pay the funeral expenses of Jerome C. Knight. To
my knowledge, the benefit noted in Exhibit “1” was paid by
Wyoming’s Workers’ Compensation Division and no
representative of Jerome C. Knight ever rejected payment of
that benefit.
[¶18] Ms. Morris’ affidavit is evidence that M&M was Decedent’s employer and that it
paid into the workers’ compensation fund for Decedent’s coverage as required by law.
M&M therefore, through the Morris affidavit, established its immunity under the
Worker’s Compensation Act. See Clark, 818 P.2d at 629. With M&M having met its
initial burden of establishing a prima facie case for summary judgment, the burden
shifted to Plaintiff to present specific facts and evidence demonstrating that a genuine
7
issue of material fact exists. See Symons v. Heaton, 2014 WY 4, ¶ 7, 316 P.3d 1171,
1174 (Wyo. 2014).
[¶19] In responding to M&M’s summary judgment motion, Plaintiff did not present
evidence that Decedent was not an employee of M&M. Indeed, Plaintiff did not dispute
that fact and alleged in both his complaint and amended complaint that Decedent was an
employee of M&M. Plaintiff likewise did not present evidence refuting M&M’s
evidence that it timely paid into the workers’ compensation fund for Decedent’s
coverage. Instead, Plaintiff contends that M&M’s payment into the workers’
compensation fund was not effective to obtain coverage for Decedent because M&M did
not comply with the Act’s requirement that an employer submit a true copy of its payroll
certifying its employees engaged in extrahazardous employment. On this basis, Plaintiff
contends that the district court erred in finding that M&M was entitled to judgment as a
matter of law. We disagree.
[¶20] The Act provides as follows concerning an employer’s obligation to submit a true
and certified payroll:
Except as provided under subsection (e) of this section,
each employer shall forward to the division on forms
provided by the division, a true copy of the payroll of his
employees engaged in extrahazardous employment during the
current calendar month or quarterly reporting period, certified
and affirmed by himself or a person having knowledge of the
payrolls under penalty of perjury. Payroll reports and
monthly payments under this act shall be submitted on or
before the last day of the month following the month in which
the earnings are paid, unless otherwise provided by rule and
regulation of the division.
Wyo. Stat. Ann. § 27-14-202(a) (LexisNexis 2013).
[¶21] Plaintiff contends that M&M did not comply with this requirement because it
stopped payment on the paycheck it issued to Decedent, as attested to in Plaintiff’s
affidavit:
3. On or about September 30th, 2010, Ashley
Morris, one of the principals of M&M Welding Services,
LLC, gave to me a check in excess of $200.00, representing
my son’s only paycheck from M&M Welding Services, LLC.
4. A few days later when I attempted to deposit
that check into his bank account, M&M Welding Services
8
had stopped payment on that check. Since that time, despite
demand, no remuneration has been made.
[¶22] Plaintiff contends that because M&M stopped payment on Decedent’s paycheck,
Decedent was not on M&M’s payroll and thus any payroll that included Decedent on it
would not have been a true payroll. Plaintiff argues that this alleged failure to report an
accurate payroll means that M&M could not have lawfully paid into the workers’
compensation fund for Decedent’s coverage and Decedent therefore had no workers’
compensation coverage. We reject Plaintiff’s argument because we find that he has
failed to present evidence that Decedent was not properly reported on M&M’s payroll.
[¶23] The Act defines the term “payroll” to mean “‘gross earnings’ as defined under
paragraph (a)(ix) of this section.” Wyo. Stat. Ann. § 27-14-102(a)(xiv) (LexisNexis
2013). “Gross earnings” is then defined to mean “remuneration payable for services
from any source including commissions, bonuses and cash and excluding tips and
gratuities.” Wyo. Stat. Ann. § 27-14-102(a)(ix) (LexisNexis 2013) (emphasis added).
Importantly, in defining the term “payroll,” the Act refers to remuneration payable and
not remuneration paid. The Act does not define the term payable, but looking to its
dictionary definition, we find that it means the amount “that may, can, or must be paid.”
Merriam-Webster’s Collegiate Dictionary 910 (11th ed. 2007).
[¶24] Plaintiff’s evidence showed that M&M stopped payment on the paycheck that it
issued to Decedent, but Plaintiff did not present evidence that there was no amount
payable to Decedent. There is no dispute that Decedent was an employee of M&M, that
Decedent performed work for M&M, that M&M paid into the workers’ compensation
fund for Decedent’s coverage, and that workers’ compensation benefits were in fact paid
to cover the costs of Decedent’s funeral services. Thus, although M&M, for undisclosed
reasons, stopped payment on Decedent’s paycheck, the unrefuted evidence and
undisputed facts show that there were amounts owing Decedent and that Decedent would
have properly been included in M&M’s payroll. Plaintiff’s assertions to the contrary are
not supported by evidence and instead require that we speculate that the reason payment
on Decedent’s paycheck was stopped was because those amounts were not due and
owing Decedent. This type of conjecture is insufficient to overcome a summary
judgment movant’s prima facie case and to establish an issue of material fact:
The evidence opposing a prima facie case on a motion
for summary judgment “must be competent and admissible,
lest the rule permitting summary judgments be entirely
eviscerated by plaintiffs proceeding to trial on the basis of
mere conjecture or wishful speculation.” Speculation,
conjecture, the suggestion of a possibility, guesses, or even
probability, are insufficient to establish an issue of material
fact.
9
Symons, ¶ 7, 316 P.3d at 1174 (citing Cook v. Shoshone First Bank, 2006 WY 13, ¶ 12,
126 P.3d 886, 890 (Wyo. 2006)).
[¶25] While it is troubling to this Court that amounts owing for Decedent’s employment
with M&M have apparently not been paid, the Act does not define the term “payroll”
based on amounts paid, but rather is based upon amounts payable. M&M’s obligation to
issue Decedent’s final paycheck is thus a separate issue from the question of its workers’
compensation coverage for Decedent. Because the undisputed facts and unrefuted
evidence show that M&M was Decedent’s employer and properly paid into the workers’
compensation fund for Decedent’s coverage, we conclude that the district court properly
ruled that Plaintiff’s claims against M&M are barred by the Wyoming Worker’s
Compensation Act.3
B. Service on McCoy Estate and Statute of Limitations
[¶26] The district court found that fatal defects in the summons Plaintiff served on the
McCoy Estate rendered that service ineffective and left the court without personal
jurisdiction over the McCoy Estate. Because the statute of limitations for Plaintiff’s
wrongful death claim had expired and service could no longer relate back to the date the
complaint was originally filed, the court ruled that the McCoy Estate was entitled to
judgment as a matter of law. Although we agree that Plaintiff’s service of process on the
McCoy Estate was defective, we find that because the McCoy Estate accepted service,
entered its appearance in the action, and consented to the court’s trial of the matter, those
defects did not affect the court’s personal jurisdiction and Plaintiff’s action was
commenced within time allowed by the wrongful death statute of limitations.
[¶27] This Court has held that “[a] court does not acquire personal jurisdiction over a
party that has not been properly served.” Lundahl v. Gregg, 2014 WY 110, ¶ 9, 334 P.3d
558, 562 (Wyo. 2014) (citing Rosty v. Skaj, 2012 WY 28, ¶ 22, 272 P.3d 947, 955 (Wyo.
2012)). We have also observed, however, that “when a defendant appears voluntarily,
without questioning the court’s personal jurisdiction, that appearance is the equivalent of
proper service of process.” Lundahl, ¶ 11, 334 P.2d at 562 (citing Operation Save Am. v.
City of Jackson, 2012 WY 51, ¶ 54, 275 P.3d 438, 456 (Wyo. 2012)); see also In re
Adoption of MSVW, 965 P.2d 1158, 1162 (Wyo. 1998). We have explained:
In order for a court to acquire jurisdiction over a
defendant, that defendant must be properly served or must
“voluntarily” appear. A judgment entered without the court
3
Because we find that Plaintiff has failed to present evidence that Decedent was not properly reported on
M&M’s payroll, we need not and do not address whether an inaccuracy in an employer’s payroll report is
a discrepancy that would necessarily undermine an employer’s workers’ compensation coverage and
immunity under the Act.
10
having jurisdiction is null and void. A defendant may waive
his right to challenge a court’s jurisdiction. Such a challenge
should be made at the defendant’s soonest opportunity.
Failure to timely broach the issue with the court may result in
waiver of that defense. Most importantly for this case, where
a defendant appears voluntarily, without questioning the
court’s personal jurisdiction, that appearance is the equivalent
of proper service of process. Matter of Adoption of MSVW,
965 P.2d 1158, 1162 (Wyo. 1998); and see Ostermiller v.
Spurr, 968 P.2d 940, 943 (Wyo. 1998) (consent to court’s
jurisdiction for one purpose may result in court’s jurisdiction
for any related purpose).
Operation Save Am., ¶ 54, 275 P.3d 455-56 (quoting JAG v. State Dep’t of Family Servs.,
2002 WY 158, ¶ 13, 56 P.3d 1016, 1019 (Wyo. 2002)); see also Walton v. State ex rel.
Wood, 2002 WY 108, ¶ 10, 50 P.3d 693, 697 (Wyo. 2002) (failure to question personal
jurisdiction at earliest opportunity deemed a waiver).
[¶28] The McCoy Estate executed an acceptance of service through its estate
administrator, and that acceptance of service was the McCoy Estate’s first appearance in
the action. The document did not challenge the district court’s personal jurisdiction over
the McCoy Estate. Instead, through the document, the estate administrator accepted and
acknowledged service of the complaint and summons, “voluntarily enter[ed] her
appearance on behalf of [the McCoy Estate]” and consented “that said cause may be tried
forthwith at the convenience of the Court.” Although Defendants subsequently filed an
answer in which they asserted affirmative defenses alleging defects in the service of
process and challenging the court’s personal jurisdiction, the McCoy Estate had already
waived those objections through its acceptance of service.
[¶29] The McCoy Estate contends that its acceptance of service should be disregarded
because it is not in the form required by W.R.C.P. 4(o) and had acceptance of service
been in the required form, it would not have resulted in a waiver of objections to defects
in process or service of process. While the acceptance of service was not in the form
required by W.R.C.P. 4(o), we do not agree that that changes the outcome in this case.
[¶30] W.R.C.P. specifies when an action is deemed commenced for purposes of
applying a statute of limitations. It provides:
For purposes of statutes of limitation, an action shall
be deemed commenced on the date of filing the complaint as
to each defendant, if service is made on the defendant or on a
co-defendant who is a joint contractor or otherwise united in
interest with the defendant, within 60 days after the filing of
11
the complaint. If such service is not made within 60 days the
action shall be deemed commenced on the date when service
is made. The voluntary waiver, acceptance or
acknowledgment of service, or appearance by a defendant
shall be the same as personal service on the date when such
waiver, acceptance, acknowledgment or appearance is
made. When service is made by publication, the action shall
be deemed commenced on the date of the first publication.
W.R.C.P. 3(b) (LexisNexis 2014) (emphasis added).
[¶31] By its plain terms, W.R.C.P. 3(b) does not limit those acts that will be deemed the
same as personal service to a W.R.C.P. 4(o) waiver of service. The rule identifies
waiver, acceptance, acknowledgment or appearance as the equivalents of personal
service, and the rule’s use of the disjunctive “or” means any one of these will suffice to
commence the action. See Olivas v. State ex rel. Wyo. Workers’ Safety and
Compensation Div., 2006 WY 29, ¶ 15, 130 P.3d 476, 484 (Wyo. 2006) (quoting Basin
Elec. Power Coop. v. State Bd. of Control, 578 P.2d 557, 566 (Wyo. 1978)) (“[T]he word
‘or’ is usually used in the disjunctive sense, and ‘when two [or more] clauses are
expressed in the disjunctive, this generally indicates alternatives, requiring separate
treatment.’”). Thus, the McCoy Estate’s acceptance of service, which was an acceptance,
an acknowledgement, and an appearance, sufficed to be the equivalent of personal service
and caused the action to commence before the statute of limitations expired.
[¶32] We also note that in terms of waiving objections to defects in process or service of
process, the acceptance of service in this case was not functionally different from a
W.R.C.P. 4(o) waiver. W.R.C.P. 4(o)(1) provides that a “defendant who waives service
of a summons does not thereby waive any objection to the venue or to the jurisdiction of
the court over the person of the defendant.” W.R.C.P. Form 1-B, which is the waiver of
service form, clarifies, however, that “[a] party who waives service of the summons
retains all defenses and objections (except any relating to the summons or to the service
of the summons), and may later object to the jurisdiction of the court or to the place
where the action has been brought.” The Practice Commentary to the federal waiver of
service rule explains:
Subdivision (b) of Rule 12 of the Federal Rules of Civil
Procedure has seven numbered grounds of objection. Of the
seven, two are waived when the request for waiver is honored
by the defendant: the objections numbered 4, on insufficiency
of process, and 5, on insufficiency of service of process.
Since there is no summons in the picture at all when the
waiver procedure is fulfilled, objection 4 has nothing to
operate on, and dispensing with formal service is of course
12
the very purpose of the waiver procedure, thus taking
objection 5 out of the picture as well.
David D. Siegal, Practice Commentary C4-16, 28 U.S.C.A. Fed.R.Civ.P. 4 (2014).
[¶33] The McCoy Estate contended that the acceptance of service should be disregarded
because it was not in the form required for a W.R.C.P. 4(o) waiver of service, but it did
not otherwise assert that there was any impropriety in the presentation of the acceptance
of service document to the McCoy Estate or in the estate administrator’s execution of the
document. We thus conclude, given that the acceptance of service was not required to be
in the form of a W.R.C.P. 4(o) waiver of service to operate as the equivalent of personal
service, that with the filing of the acceptance of service, the wrongful death action
commenced. Because the McCoy Estate’s acceptance of service occurred before the
expiration of the statute of limitations, Plaintiff’s action against the McCoy Estate was
not barred by the statute of limitations.
CONCLUSION
[¶34] The district court correctly concluded that M&M’s employer immunity under the
Wyoming Worker’s Compensation Act barred Plaintiff’s wrongful death action against
M&M as a matter of law. The court erred, however, in concluding that the statute of
limitations barred Plaintiff’s action against the McCoy Estate. We thus affirm in part and
reverse in part.
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