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Diamond Surface8/17/1998
, cert. denied ___ U.S. ___, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997) (quoting Herrig v. Herrig, 844 P.2d 487, 490 (Wyo. 1992)).
On review of summary judgment, we treat the motion as though it had been presented originally to this court. Havens v. Hoffman, 902 P.2d 219, 220 (Wyo. 1995). Summary judgment is properly granted based upon dual findings that there is no genuine issue of material fact and that the prevailing party is entitled to judgment as a matter of law. Teton Plumbing and Heating, Inc. v. Board of Trustees, Laramie County School Dist. No. One, 763 P.2d 843, 847 (Wyo. 1988). When reviewing an issue of law, no deference is accorded to the decision of the district court. Griess v. Office of the Atty. Gen., Div. of Criminal Investigation, 932 P.2d 734, 736 (Wyo. 1997); Kahrs v. Board of Trustees for Platte County School Dist. No. 1, 901 P.2d 404, 406 (Wyo. 1995).
IV. DISCUSSION
A. CASE NO. 97-21: GOVERNMENTAL IMMUNITY
The sole issue in this appeal is whether governmental immunity was waived by the provisions contained in the Wyoming Underground Facilities Notification Act (Notification Act), in effect at the time of the accident. In essence, the State contends that the Wyoming Governmental Claims Act (Claims Act) provides the exclusive basis for any waiver of governmental immunity pursuant to the language of Wyo. Stat. § 1-39-104(a), which states in part: "A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1-39-105 through 1-39-112." The State contends that because the district court did not find a waiver of immunity authorized by Wyo. Stat. §§ 1-39-105 through 1-39-112, it erred in concluding that the State's immunity was waived.
The district court, however, implicitly determined that the Claims Act was not the only source of a waiver of governmental immunity. After acknowledging that the original plaintiffs made no claim of waiver under the Claims Act, the district court turned to Wyo. Const. art. 1, § 8, which provides that " uits may be brought against the state in such manner and in such courts as the legislature may by law direct." Finding a separate source of waiver in this constitutional provision, the district court reasoned that because Wyo. Stat. § 37-12-301(a)(iii) includes the State within the definition of the word "person" in the Notification Act, and because Wyo. Stat. § 37-12-302(f) expressly mentions liability for a "person's" negligence, sovereign immunity was "textually and unequivocally" waived.
There can be no doubt that the language of the Claims Act unambiguously expresses the intention to grant immunity in all but very limited circumstances. Newberry v. Board of County Com'rs of Fremont County, 919 P.2d 141, 145 (Wyo. 1996). We have also recognized the "close-ended" nature of the Claims Act. Gibson v. State Through Dept. of Revenue and Taxation, 811 P.2d 726, 728 (Wyo. 1991); Sawyer v. City of Sheridan, 793 P.2d 476, 478 (Wyo. 1990); Cooney v. Park County, 792 P.2d 1287, 1299 (Wyo. 1990), cert. granted and vacated on other grounds, 501 U.S. 1201, 111 S.Ct. 2820, 115 L.Ed.2d 965 (1991), cert. denied 510 U.S. 813, 114 S.Ct. 60, 126 L.Ed.2d 30 (1993); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 709 (Wyo. 1987). However, the resolution of the case before us does not require a determination of whether there can ever be a statutory waiver of immunity apart from those subjects covered by the Claims Act. We need look only to the language of the Notification Act to find that it does not contain an expression of legislative intent sufficient to defeat the clear and unequivocal la
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