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Diamond Surface8/17/1998
This opinion addresses two consolidated appeals arising from lawsuits brought by, or on behalf of, a subcontractor's employees who were killed or injured in a pipeline explosion while working on a road construction project in May 1994. The lawsuits named as defendants the general contractor, Diamond Surface, Inc.; the pipeline owner, Western Gas Resources, Inc.; and the State of Wyoming. The State moved to dismiss the complaints against it, claiming governmental immunity. The State now appeals the district court's determination that the Wyoming Underground Facilities Notification Act, Wyo. Stat. §§ 37-12-301 through 37-12-304 (Cum. Supp. 1995), contained an unequivocal waiver of governmental immunity. Diamond Surface, Inc. appeals the dismissal of its third-party complaint against the employer, subcontractor Brasel & Sims Construction Company, which the district court found to be precluded by the comparative fault statute, Wyo. Stat. § 1-1-109 (Rpl. June 1988).
Finding no unequivocal waiver of governmental immunity in the Wyoming Underground Facilities Notification Act, we reverse and remand the district court's order in Case No. 97-21. We further find that a claim for express indemnity, under limited circumstances, survives the adoption of comparative fault in Wyoming. We therefore affirm in part and reverse in part the district court's dismissal of Diamond Surface, Inc.'s third-party claim for contractual indemnity in Case No. 97-52, and remand for further proceedings in accordance with this opinion.
I. ISSUES
The State of Wyoming, as petitioner in Case No. 97-21, presents the following issues for review:
I. Did the Wyoming Underground Facilities Notification Act, W.S. § 37-12-301 et seq. (repl.vol. 1996), as it existed on May 3, 1994, expressly or impliedly waive the State's governmental immunity from tort liability?
II. Does any waiver of the State's immunity from tort liability exist within the Wyoming Governmental Claims Act, W.S. § 1-39-101 et seq. (repl. vol. 1988 and cum. supp. 1996), for the conduct alleged by Respondents in their consolidated complaints?
Respondents, personal representatives of the deceased employees' estates, reply with one issue:
Is the State of Wyoming immune from suit for three wrongful deaths and one bodily injury which resulted from the State's
failure to obtain a utility locate, in violation of Wyo.Stat. §§ 37-12-301 and 37-12-302 (1978), prior to authorizing excavation directly above a natural gas pipeline adjoining a federal interstate highway?
Diamond Surface, Inc. (Diamond Surface), as appellant in Case No. 97-52, identifies three issues:
A. Whether the district court properly granted appellee's motion to dismiss appellant's third-party claim for negligence since such claim is not barred by the exclusivity provision of the Wyoming Worker's Compensation Act.
B. Whether the district court properly granted appellee's motion to dismiss appellant's third-party claim for contractual indemnity since principles of comparative fault do not abolish claim for indemnity.
C. Whether the district court properly granted appellee's motion to dismiss appellant's third-party claim for equitable implied indemnity since principles of comparative fault do not abolish claims for indemnity.
Appellee, Brasel & Sims Construction Company (Brasel & Sims), responds:
I. Is Diamond Surface's negligence claim barred by application of Wyoming's Comparative Fault Statute? (Wyo. Stat. § 1-1-109 (Supp. 1988)).
II. Is Diamond Surface's expr
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