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Diamond Surface8/17/1998
nguage of the Claims Act. See Hurst v. State, 698 P.2d 1130, 1132 (Wyo. 1985) and Retail Clerks Local 187 AFL-CIO v. University of Wyoming, 531 P.2d 884, 886 (Wyo. 1975).
In the past, the legislature has expressed its intent to waive governmental immunity explicitly and in no uncertain terms. See Wyo. Stat. § 1-39-104(a); Wyo. Stat. § 21-3-129(b) (1997) ("The defense of governmental immunity is expressly waived to the extent of any insurance coverage of the district involving any such alleged tort."); Wyo. Stat. § 27-11-110 (1997) (" he state of Wyoming does hereby waive sovereign immunity" for bonds not to exceed $50,000.00.); Wyo. Stat. § 35-2-114(b) (1997) (to the extent of liability insurance, "the defense of governmental immunity is expressly waived."); and Wyo. Stat. § 21-3-126 (1997) ("The defense of governmental immunity is expressly waived" to the extent of liability insurance.). (Emphasis added.) In each of these statutes, the legislature has chosen to specifically state that governmental immunity is waived, even though the subject matter is arguably addressed in the Claims Act. Suffice it to say that when the subject matter of a statute is not within the subjects covered by the Claims Act, judicial construction cannot substitute for the absence of explicit language waiving sovereign immunity. See State Dept. of Highways v. Mountain States Tel. & Tel. Co., 869 P.2d 1289, 1291 (Colo. 1994).
Finding no express waiver of immunity within the Notification Act, and agreeing with the district court that no claim was presented for which immunity is waived under the Claims Act, we reverse the district court's order denying summary judgment in favor of the State.
B. CASE NO. 97-52: THIRD-PARTY CLAIM
Abandoning its defense of immunity under the Wyoming worker's compensation statutes, Brasel & Sims asserts that the district court properly dismissed Diamond Surface's third-party complaint because the comparative fault statute precludes any possibility that Diamond Surface will be held liable for Brasel & Sims' negligence. Brasel & Sims reasons that because the jury will apportion fault between all the actors, if Diamond Surface is found liable it will be only for its own negligence. Diamond Surface, however, contends that it has a viable claim for indemnity under the express provisions of its contract with Brasel & Sims and the principles enunciated in Schneider Nat., Inc. v. Holland Hitch Co., 843 P.2d 561, 571 (Wyo. 1992).
In Schneider Nat., Inc., the owner of a tractor-trailer involved in a fatal accident sought third-party indemnity from the manufacturer of the allegedly defective trailer hitch and a road construction contractor that allegedly failed to perform construction in a safe manner. The United States District Court for the District of Wyoming dismissed the indemnity claim, holding that Wyoming's adoption of comparative negligence effectively abrogated the right to seek indemnity. On certification from the Tenth Circuit Court of Appeals, we determined that the comparative fault statute did not preclude a third-party claim in limited circumstances. Schneider Nat., Inc., 843 P.2d at 578.
In Schneider Nat., Inc., our analysis began with a reiteration of the general rule of indemnity as found in the Restatement of Restitution § 76 (1937):
"A person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct."
Schneider Nat., Inc., 843 P.2d at 572 (emphasis added). A prerequis
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