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Diamond Surface8/17/1998
ess indemnity claim barred by these same principles?
III. Is Diamond Surface's equitable implied indemnity claim barred by the existence of an express indemnity agreement?
II. FACTS
Diamond Surface contracted with the Wyoming Department of Transportation to act as the general contractor on a construction project which involved reconstruction and repairs to a shoulder section of Interstate 80 between Evanston and Green River, Wyoming. In turn, Diamond Surface subcontracted the dirt work and other tasks to Brasel & Sims. The subcontract provided that Brasel & Sims would take full responsibility for compliance with safety statutes, rules and regulations and included a provision to hold Diamond Surface harmless for "any and all loss or expense" and "all liability" for damages due to the negligence of Brasel & Sims, its agents, or employees.
A natural gas pipeline, owned by Western Gas Resources, Inc. (Western Gas), was located beneath the ground in the approximate area of the proposed project. The exact location of the pipeline was not marked, and during excavation on May 3, 1994, the ripper bar of a Caterpillar D-9 bulldozer hit the pipeline, causing it to rupture and explode. Two of Brasel & Sims' employees were instantly killed, and two were injured. One of the injured employees later died.
Several lawsuits, subsequently consolidated by the district court, were filed against Diamond Surface, Western Gas, and the State. The State responded with a motion to dismiss pursuant to W.R.C.P. 12(b)(6), asserting immunity from suit under the Wyoming Governmental Claims Act, Wyo. Stat. §§ 1-39-101 through 1-39-120 (1997 & Cum. Supp. 1996). For its part, Diamond Surface filed a third-party complaint against Brasel & Sims, alleging claims for negligence, express indemnity, and equitable implied indemnity. Brasel & Sims responded with a W.R.C.P. 12(b)(6) motion to dismiss, claiming immunity from suit for negligence under the worker's compensation statutes and asserting that the comparative fault statute prevented a result which would hold Diamond Surface liable for the negligence of Brasel & Sims.
A hearing was held on both motions to dismiss on September 18, 1996. On October 23, 1996, the district court converted the State's motion to dismiss into a motion for summary judgment, and provided additional time for submission of relevant evidence and legal argument.
On November 14, 1996, the district court granted Brasel & Sims' motion to dismiss, based on the grounds asserted in the motion, to which Diamond Surface filed a timely appeal. On December 20, 1996, the district court denied the State's motion, finding that the provisions of the Wyoming Underground Facilities Notification Act, Wyo. Stat. §§ 37-12-301 through 37-12-304, "textually and unequivocally" waived the State's immunity. An order granting an interlocutory writ of review of the denial of the State's motion for summary judgment was issued on February 6, 1997, and on February 25, 1997, the two cases were consolidated.
III. STANDARD OF REVIEW
The dismissal of a complaint is a drastic remedy which should be granted sparingly. Gillis v. F & A Enterprises, 934 P.2d 1253, 1255 (Wyo. 1997). When reviewing a W.R.C.P. 12(b)(6) dismissal, this court accepts all facts stated in the complaint as being true and views them in the light most favorable to the plaintiff. We will sustain a W.R.C.P. 12(b)(6) dismissal only when it is certain from the face of the complaint that the plaintiff cannot assert any facts that would entitle him to relief. Rissler & McMurry Co. v. State, 917 P.2d 1157, 1160 (Wyo. 1996)
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