author: KITE, Justice.

text:
    2002 WY 172
    PRINCIPAL LIFE INSURANCE COMPANY, Appellant (Third Party Defendant), v. SUMMIT WELL SERVICE, INC., a corporation; Ann P. Allen, in her capacity as the Personal Representative and Executrix of the Estate of Robert M. Allen, deceased; and Ann P. Allen, individually, Appellees (Defendants/Third Party Plaintiffs). Byron R. Woodard, Appellant (Plaintiff/Third Party Defendant), v. Principal Life Insurance Company, a corporation, Appellee (Third Party Defendant).
    Nos. 01-183, 01-184.
    Supreme Court of Wyoming.
    Nov. 22, 2002.
    Rehearing Denied Jan. 7, 2003.

      Peter K. Michael of Peter K. Michael, P.C., Cheyenne, Wyoming, Representing Principal Life Insurance Company.
    V. Anthony Vehar of Vehar Law Offices, P.C., Evanston, Wyoming, Representing Byron Woodard.
    Ray G. Martineau, Anthony R. Martineau, and Brett D. Cragun of Salt Lake City, Utah, Representing Summit Well Service, Inc.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   KITE, Justice.

[¶ 1] Upon the death of its insured, Robert Allen, Principal Life Insurance Company (Principal) delivered the proceeds under Mr. Allen’s life insurance policy to his business associates, Brent Nelson and Byron Woodard. Ann Allen, Mr. Allen’s widow, claims the delivery to Mr. Nelson and Mr. Woodard was improper and the insurance policy proceeds should have been paid to her. She contends Summit Well Service, Inc., a Utah corporation owned solely by her late husband, was the named beneficiary under the policy and she, as the only authorized representative of the corporation after her husband’s death, was entitled to the policy proceeds. Principal argues delivery to Mr. Nelson and Mr. Woodard was proper because the named beneficiary under the policy was Summit Well Service (Summit), a partnership consisting of Mr. Allen, Mr. Woodard, and Mr. Nelson. After a bench trial, the trial court agreed with Mrs. Allen and ordered Principal to pay $1,516,046.74 (the amount of the policy plus interest, costs, and attorney’s fees) to Mrs. Allen. We reverse and remand.

ISSUES

[¶2] Principal, as the appellant in Case No. 01-183, raises the following issues:

I. Whether the trial judge’s conclusion that Principal breached the insurance contract was clearly erroneous[.]
II. Whether the claims against Principal were barred by W.S. § 26 — 15—102(d)[.]
III. Whether the claims against Principal were barred by equitable estoppel[.]
IV. Whether the claims against Principal were barred by ratification of the delivery of policy benefits[J
V. Whether the third party plaintiffs were entitled to attorneys’ fees and interest under W.S. § 26 — 15—124(c)[.]
VI. Whether the trial judge abused his discretion in awarding over $220,000 in attorneys’ fees[.]
VII[]. Whether the trial judge abused his discretion in awarding costs[.]

Summit Well Service, Inc., an appellee in Case No. 01-183, lists the same issues in its brief.

[¶ 3] Mr. Woodard, the appellant in Case No. 01-184, presents the following issues:

A. Did the district court err in its interpretation of the written contract between Robert M. Allen and Appellant Byron R. Woodard?
B. Was the district court clearly erroneous in its finding that Appellant Woodard was guilty of intentional misrepresentation (deceit) in regard to the payment of death benefit proceeds by Principal Life Insurance Company to Summit Well Service by and through Brent Nelson?

Principal, as the appellee in Case No. 01-184, phrases the issues as:

I. Whether Principal had any liability to Third Party Plaintiff Summit Well Service, Inc. that would create a basis for the cross-claim against Woodard[.]
II. Whether Principal’s cross-claim for indemnity could be based on fraud, as well as its other legal theories!?]

FACTS

[¶ 4] In 1997, Mr. Allen was the sole shareholder, officer, and director of three companies: Summit; Duel Production, Inc. (Duel); and Trans Pacific Investments, Inc., doing business as A.C.T. (A.C.T.). During that year, Mr. Allen was also involved in business dealings with Mr. Woodard and Mr. Nelson relating to the three companies. On July 2, 1997, in furtherance of their business dealings, Mr. Allen and Mr. Woodard and Mr. Allen and Mr. Nelson, respectively, entered into letter agreements intended to set out the parameters of their business relationships. In the letter agreements, Mr. Allen agreed to transfer a twenty percent interest in Summit, Duel, and A.C.T. to Mr. Woodard and a forty percent interest in those entities to Mr. Nelson. In return for receiving the equity interests, Mr. -Woodard and Mr. Nelson agreed to operate and manage the businesses on a day-to-day basis.

[¶ 5] In September of 1997, Mr. Allen, Mr. Woodard, and Mr. Nelson applied with Principal for individual $1 million life insurance policies. The information provided to Principal when the applications were made showed Mr. Nelson and Mr. Allen were the owners of Summit and Mr. Woodard was an employee. All three applications' listed Summit as “owner.” The men submitted applications and authorization forms with their applications which were signed by Mr. Nelson as owner of the insurance.

[¶ 6] Initially, Mr. Allen and Mr. Nelson named their respective estates as beneficiaries under their policies, and Mr. Woodard named Summit as his beneficiary. .After discussions between Principal’s agents and Mr. Allen and Mr. Nelson, their policies were amended to name Summit as the beneficiary under their policies. The policies were issued with the amendments on January 28, 1998. Mr. Nelson’s signature appears on the acknowledgement of delivery form as “contract owner.” Insurance premiums for the policies were paid by checks signed by either Mr. Allen alone or Mr. Allen and Mr. Woodard jointly and issued from bank accounts in the name of Summit, A.C.T, or Duel. Three months after the insurance policies were issued, on April 24, 1998, Mr. Allen died in a motorcycle accident.

[¶ 7] On April 1,1998, three weeks before Mr. Allen’s death, the State of Utah involuntarily dissolved Summit Well Service, Inc. because it failed to file an annual report. There is no evidence in the record that, prior to Mr. Allen’s death, any steps were taken to officially transfer ownership interests in Summit, Duel, or A.C.T. to Mr. Woodard or Mr. Nelson or to make them officers or directors. There also is no indication in the record of any formal partnership agreement other than the July 2, 1997, letter agreements, nor are there any other partnership records.

[¶ 8] After her husband’s death, Mrs. Allen attempted to obtain a copy of the policy and a claim form from Principal. In making the request, Mrs. Allen informed Principal that her husband was the sole owner of Summit Well Service, Inc. and she was his personal representative. Mrs. Allen enclosed copies of the will appointing her personal representative of the estate and the stock purchase agreement reflecting her late husband’s purchase of Summit Well Service, Inc. Principal denied Mrs. Allen’s request for a copy of the policy and a claim form on the ground that she did not provide sufficient proof that she was an authorized representative of the policy owner or beneficiary. It did refer Mrs. Allen to claims specialist Mike Wagner who was investigating the claim, and he came to Wyoming to interview her. Mrs. Allen also informed Mr. Wagner during the interview that her husband was the sole owner and director of Summit Well Service, Inc. On May 22,1998, Mrs. Allen filed an application for reinstatement of Summit Well Service, Inc., and the State of Utah granted the application.

[¶ 9] On June 15, 1998, Mr. Nelson submitted a claim for payment of benefits under the policy, listing himself as beneficiary and signing his name in the signature block. Upon receipt of his claim on June 26, 1998, Principal informed Mr. Nelson that he needed to submit a new claim listing Summit rather than himself as the beneficiary and signing as the authorized representative of the business. Mr. Nelson submitted a second claim form on June 30, 1998. Meanwhile, on June 19, 1998, Mr. Woodard and Mr. Nelson filed a complaint against Mrs. Allen, Summit, Duel, and A.C.T. alleging Mrs. Allen had assumed control of, and was refusing to recognize their interest in, the three businesses and she was attempting to bypass their interest in the insurance policy proceeds by having the benefits paid directly to her.

[¶ 10] On July 9, 1998, Principal issued a check in the amount of $1,008,370.41 (the policy proceeds plus interest) to Summit. The check was hand delivered to Mr. Woodard on July 10,1998. it was deposited into a bank account in Utah, and the proceeds were later split between Mr. Woodard and Mr. Nelson.

[¶ 11] On the morning of July 10, 1998, prior to delivering the insurance proceeds to Mr. Woodard, Principal received a telephone call from Billie Crocker, counsel for Mrs. Allen. Jerry Mogenson, senior claim administrator, took the call and informed Ms. Crocker that he did not have sufficient documentation substantiating Mrs. Allen’s status with Summit to allow him to release a copy of the policy and a claim form to her. Ms. Crocker indicated she would send additional documentation by facsimile. At 9:10 a.m., a facsimile arrived informing Principal that Mr. Nelson was terminated from his employment with Summit on May 6, 1998, and Mrs. Allen was the sole shareholder, president, and director. Attached to the facsimile were a letter from Mrs. Allen to Summit Well Service, Inc. directing the corporation to transfer all ownership to her as personal representative of the estate; a written consent in lieu of directors meeting executed by Mrs. Allen appointing herself director of the corporation; and a certificate of good standing for Summit Well Service, Inc. dated June 1, 1998, from the Utah Department of Commerce. Upon reviewing the documentation, Mr. Mogenson left a message for Ms. Crock-er at 11:15 a.m. indicating he would send her a copy of the policy and a claim form. He also told her Principal had already issued a check that was on its way to Mr. Nelson, the authorized business representative at the time of Mr. Allen’s death. Except perhaps for a follow-up call from Ms. Crocker to Mr. Mogenson on July 10, 1998, clarifying the earlier telephone message, Principal received no further communication from Mrs. Allen or her representatives concerning the policy or the proceeds until February 16, 1999, when a subpoena duces tecum was served at Principal’s business office for insurance company records.

[¶ 12] On August 10, 1998, Mrs. Allen, Summit, Duel, and A.C.T. filed an answer to the complaint alleging Mr. Woodard and Mr. Nelson were merely former employees of the businesses and had no ownership interest in the companies or the life insurance proceeds. Mrs. Allen also filed a counterclaim alleging Mr. Woodard and Mr. Nelson had wrongfully obtained the insurance proceeds and converted them to their personal use. Numerous and lengthy procedural wranglings followed, and, on January 27, 1999, it was disclosed to the court that the insurance proceeds were not available and had not been available for a number of months because they had been spent on the business.

[¶ 13] Additional motions and hearings followed, and, on May 27, 1999, Mrs. Allen, Summit, Duel, and A.C.T. requested leave to file a third-party complaint against Principal. The trial court granted the motion, and, on July 2, 1999, a third-party complaint was filed alleging various claims, including breach of contract and bad faith against Principal. Principal answered the complaint and filed a cross-claim for indemnity against Mr. Woodard and Mr. Nelson.

[¶ 14] A trial to the court commenced on October 18, 2000, on Mrs. Allen’s claims against Principal for breach of contract and bad faith and Principal’s claim for indemnity against Mr. Woodard and Mr. Nelson. The court issued its ruling on November 17, 2000, finding in favor of Mrs. Allen, Summit, Duel, and A.C.T. and against Principal for breach of contract based upon improper payment of the insurance proceeds. The court found in favor of Principal on the bad faith claim and on the cross-claim against Mr. Woodard.

[¶ 15] On April 26, 2001, the court entered lengthy findings of fact and conclusions of law. Of most importance to the issues this court finds determinative, the trial court reached the following conclusions as a matter of law:

1. No partnership ever existed by or between Allen, Woodard, and/or Nelson.
2. Allen’s poliey/contract of insurance is not ambiguous and Principal is charged with full notice that Summit was a corporation and not a partnership.

[¶ 16] The trial court entered judgment against Principal in the amount of $1,516,049.74 (the policy amount plus interest, attorney’s fees, and costs). It entered an amended order on June 29, 2001, awarding Principal judgment against Mr. Nelson and Mr. Woodard, jointly and severally, in the amount of $1,516,046.74 plus costs and attorney’s fees. Principal and Mr. Woodard timely appealed.

STANDARD OF REVIEW

[¶ 17] An insurance policy constitutes a contract between the insurer and the insured. Evans v. Farmers Insurance Exchange, 2001 WY 110, ¶ 8, 34 P.3d 284, ¶ 8 (Wyo.2001); Helm v. Board of County Commissioners, Teton County, Wyoming, 989 P.2d 1273, 1275 (Wyo.1999). As with other types of contracts, our basic purpose in construing or interpreting an insurance contract is to determine the parties’ true intent. Polo Ranch Company v. City of Cheyenne, 969 P.2d 132, 136 (Wyo.1998). We must determine intent, if possible, from the language used in the policy, viewing it in light of what the parties must reasonably have intended. Sinclair Oil Corporation v. Republic Insurance Company, 929 P.2d 535, 540 (Wyo.1996). The nature of our inquiry depends upon how clearly the parties have memorialized their intent. Evans, 2001 WY 110, ¶ 8, 34 P.3d 284. Where the contract is clear and unambiguous, our inquiry is limited to the four corners of the document. Id.; Sierra Trading Post, Inc. v. Hinson, 996 P.2d 1144, 1148 (Wyo.2000).

[¶ 18] We interpret an unambiguous contract in accordance with the ordinary and usual meaning of its terms. St. Paul Fire and Marine Insurance Co. v. Albany County School District No. 1, 763 P.2d 1255, 1258 (Wyo.1988). The parties to an insurance contract are free to incorporate within the policy whatever lawful terms they desire, and the courts are not at liberty, under the guise of judicial construction, to rewrite the policy. Hulse v. First American Title Company of Crook County, 2001 WY 95, ¶ 37, 33 P.3d 122, ¶ 37 (Wyo.2001); St. Paul Fire and Marine Insurance Co., 763 P.2d at 1258. It is only when a contract is ambiguous that we construe the document by resorting to rules of construction. Evans, 2001 WY 110, ¶ 9, 34 P.3d 284; Sinclair Oil Corporation, 929 P.2d at 539; Martin v. Farmers Insurance Exchange, 894 P.2d 618, 620 (Wyo.1995). Whether a contract is ambiguous is a question for the court to decide as a matter of law. Evans, 2001 WY 110, ¶ 9, 34 P.3d 284; Martin, 894 P.2d at 620.

[¶ 19] A contract is ambiguous if indefiniteness of expression or double meaning obscure the parties’ intent. Evans, 2001 WY 110, ¶ 9, 34 P.3d 284; Hansen v. Little Bear Inn Company, 9 P.3d 960, 964 (Wyo.2000). Ambiguity cannot be created by the subsequent disagreement between the parties regarding the meaning of a contract. Farmers Insurance Exchange v. Dahlheimer, 3 P.3d 820, 826 (Wyo.2000); Frost Construction Company v. Lobo, Inc., 951 P.2d 390, 394 (Wyo.1998). If the meaning of a provision in a contract is not readily apparent, the court máy resort to competent evidence of extraneous circumstances to determine the parties’ intent. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994). Reviewing courts are free to make a determination as to the existence of ambiguity whether or not the parties agree one way or the other and whether or not the trial court has reached a conclusion one way or the other. Examination Management Services, Inc. v. Kirschbaum, 927 P.2d 686, 689 (Wyo.1996); Amoco Production Company v. Stauffer Chemical Company of Wyoming, 612 P.2d 463, 465 (Wyo.1980).

[¶ 20] The trial court 'in this case entered extensive findings of fact and conclusions of law. We review a trial court’s conclusions de novo. Polo Ranch Company, 969 P.2d at 136; Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993). A judge’s factual findings are subject to a broader scope of review than a jury verdict is; the appellate court may examine all the properly admissible evidence appearing in the record. Polo Ranch Company, 969 P.2d at 136. We will not disturb the trial court’s findings unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.

DISCUSSION

A. Breach of Contract

[¶ 21] Mrs; Allen alleges the intended beneficiary of the life insurance proceeds is Summit Well Service, Inc., a Utah corporation owned solely by her late husband. Principal claims Summit, a partnership consisting of Mr. Allen, Mr. Woodard, and Mr. Nelson, was the intended beneficiary. Faced with these opposing claims, the trial court held as a matter of law that: (1) no partnership ever existed among Mr. Allen, Mr. Woodard, and Mr. Nelson; and (2) the policy unambiguously provides Summit Well Service, Inc., the corporation owned solely by Mr. Alien, was the intended beneficiary. Accordingly, the court held Principal breached the insurance contract by paying the policy proceeds to Mr. Woodard and Mr. Nelson. It ordered Principal to repay the policy amount to Mrs. Allen as the authorized representative of Summit Well Service, Inc.

[¶ 22] We begin by determining whether the trial court properly concluded as a matter of law that the insurance contract was unambiguous. In making this determination, we look to the printed policy itself, the application, and any amendments. “The general rule is that the application becomes a part of the agreement between the parties, and that the policy and application, taken together, constitute the contract of insurance.” 3 Eric Mills Holmes, Appleman on Insurance 2d § 15.16 at 266-67 (1998).

[¶23] The insurance policy issued by Principal on Mr. Allen’s life contains the original application for insurance and an amendment to the application. The original application lists Mr. Allen as the insured, his estate as the beneficiary, and Summit as the owner of the policy and his employer. It also lists Mr. Allen’s occupation as “owner” of Summit. On a separate page of the application, Mr. Nelson, “CEO” of Summit, is listed as the owner of the insurance. The amendment to the application dated January 28, 1998, and stamped “received” February 9, 1998, changes the beneficiary from the estate to “Summit Well Service — Employer.” Mr. Nelson is listed again on the amendment to the application as the policy owner.

[¶ 24] Looking at these provisions of the policy, we hold the trial court erred as a matter of law in concluding the insurance contract is unambiguous. The insurance contract on its face is susceptible to double meaning. It is not clear from the four corners of the document whether the Summit Well Service named as beneficiary is Summit Well Service, Inc., the Utah corporation which Mrs. Allen alleges was owned solely by her late husband, or is instead Summit, which Principal alleges was jointly owned and operated by Mr. Allen, Mr. Woodard, and Mr. Nelson. Because we find the beneficiary description on the face of the insurance contract susceptible to double meaning and, therefore, ambiguous, we look to all the surrounding circumstances and extrinsic evidence pertaining to the context within which the contract was formed in order to determine the parties’ intent. Polo Ranch Company, 969 P.2d at 140.

[¶ 25] The parties to the insurance contract were Mr. Allen as the insured with Mr. Nelson as the owner and Principal as the insurer. It is their intent in entering into the insurance contract that we must look to in determining the meaning of the beneficiary provision. The intent of persons not party to the contract, or their suppositions as to the intent of the contracting parties, is not relevant to our inquiry except to the extent that it may shed light on circumstances surrounding formation of the contract.

[¶ 26] Principal agent Nancy Douglas testified Mr. Allen and Mr. Nelson provided the information contained in the application for insurance. Based upon that information, Ms. Douglas testified that, in September when contract negotiations began, she understood the purpose of the insurance was to provide protection for Mr. Allen and Mr. Nelson in the event something happened to Mr. Woodard. She testified further that, based upon her discussions with Mr. Allen, Mr. Nelson, and Mr. Woodard, she did not understand Summit to be a corporation; rather, she understood there were three companies being operated under the umbrella of Summit which were jointly owned by Mr. Allen, Mr. Woodard, and Mr. Nelson.

[¶27] As to the precise nature of the business entity, Ms. Douglas testified the owners themselves were unsure throughout the discussions what they wanted although at some point they told her Summit was a partnership with Mr. Woodard owning twenty percent and Mr. Allen and Mr. Nelson each owning forty percent. In a discussion between Mr. Allen and Ms; Douglas sometime between September 26 and October 2, 1997, Mr. Allen said that Mr. Woodard had -been given twenty percent of all three businesses, Mr. Woodard was the only one with working knowledge of the businesses, and Mr. Allen and Mr. Nelson each owned forty percent of the businesses.

[¶ 28] Ms. Douglas’ understanding of the business relationship is memorialized in the following excerpts from an undated letter, which she faxed to another Principal representative on October 2,1997:

The [c]ompany is owned by Brent Nelson and Robert Allen. The [i]nsurance on them[]selves is for a buy out in case of either death. I can provide guidelines for the company for a buy sell agreement, [i]f necessary.... But within their [corporation there are three [companies, Summit Well Service ... A.C.T[.][and] Duel _ Byron Woodard is the [k]ey [e]mployee for all three companies. He also owns 20% interest in all three companies. He not only is the [k]ey employee, [h]e is the only one who knows the workings of all 3 companies. Robert Allen and Brent Nelson are the investors behind all three companies. Byron’s duties include [s]enior [r]ig [superintendent, for Summit, and he is a[c]onsultant for both of the other companies. Robert and Brent overt ]see the [administration and [financial duties.

Ms. Douglas testified this, in essence, was her understanding throughout her discussions with Mr. Allen, Mr. Woodard, and Mr. Nelson. She also testified that, before writing the letter, she reinterviewed all three business associates to make sure her understanding was correct.

[¶29] Ms. Douglas further testified she did not know there was a corporation by the name of Summit Well Service, Inc. and she had never heard mention of Mrs. Allen during the time the policy was being discussed. None of the three business associates — Mr. Allen, Mr. Woodard, or Mr. Nelson — ever used the name Summit Well Service, Inc. or indicated the beneficiary under the policy was a Utah corporation.

[¶ 30] Ms. Douglas’ testimony is supported by Mr. Woodard’s testimony that it was his understanding the three policies were purchased to protect the partnership— “if anything happened to any one of the three of us, the other two would have this to rely on to continue in business.” Mr. Nelson likewise testified:

[T]he intent of the [insurance] was for the benefit of the remaining two surviving partners if one passed away and it was explained to the insurance broker that way. The insurance broker explained it back to us that way and even went so far as to explain that this does not cover the estate, this does not cover your family, if you wanted family insurance then you need to take out additional insurance.

[¶ 31] With respect to the nature of their business association, Mr. Woodard testified Mr. Allen told him' “he allowed all of the corporations to lapse intentionally, that his ultimate intention was to tie all of the entities into a public stock offering.” Mr. Nelson testified, “We didn’t have a corporation.... We let it lapsé. We had no intent of operating it as that corporation, we started this public shell to roll all of these companies into.” Mr. Nelson further testified, “Bob never wanted ... the organization to be tightly defined because it put him in a box that maybe he couldn’t get out of. He never knew which would be to his advantage, to be a corporation, a private entity, a public corporation, a partnership, and that’s the way he did business.”

[¶32] The testimony of Mrs. Allen’s attorney lends support to the evidence that Mr. Allen never intended for the Utah corporation to be the beneficiary under the policy and, in fact, intended to let it lapse. Ms. Crocker testified Summit Well Service, Inc. was dissolved on April 1, 1998, and, as a consequence, its authority to do business in Wyoming was revoked on July 1,1998.'

[¶ 33] The testimony of these witnesses is supported by documentation in the record showing that each of the participants in the business association — Mr. Allen, Mr. Woodard, and Mr. Nelson — met with Ms. Douglas in the same time frame for the purpose of taking out individual life insurance policies. Each participant designated Summit as beneficiary under his policy, Mr. Woodard doing so from the beginning and Mr. Allen and Mr. Nelson accomplishing the same by amendment to their policies. Each policy names Mr. Nelson as owner of the insurance, a fact of some importance given there is no contention he was involved in Summit Well Service, Inc., the Utah corporation owned solely by Mr. Allen. Mr. Nelson also signed off as “owner” on the forms acknowledging Principal had delivered the three policies. The businesses paid the premiums on the policies with checks signed by Mr. Allen alone or Mr. Allen and Mr. Woodard jointly. These factors, together with the testimony of Principal’s agent who handled the negotiations and the corroborative testimony of Mr. Nelson and Mr. Woodard as to the circumstances surrounding the formation of the contract, persuade us the parties’ intent was that Summit, a business association of Mr. Allen, Mr. Woodard, and Mr. Nelson, was to be the beneficiary under the policy. Given this determination, Principal did not breach the contract of insurance when it paid the policy proceeds to Mr. Nelson.

[¶ 34] In reaching this result, we find it unnecessary to determine whether the “Summit Well Service” named in the policy is a partnership, corporation, pr some other type of business entity. The record clearly establishes the insurance was intended to protect the business, and, upon the death of the insured, the insurer delivered the proceeds to the authorized representative of that business irrespective of the form of the business entity. Mr. Nelson, to whom the proceeds were paid as the authorized representative of Summit, was either a partner or an officer of the business. These are the factors we find determinative, not whether Summit was a partnership or a corporation or whether Mrs. Allen had authority to act on behalf of the corporation.

[¶35] We are aware Mrs. Allen will be negatively affected by our holding that Principal properly delivered the proceeds to Mr. Nelson and Mr. Woodard. However, we are convinced from the record before us that our ruling effectuates the parties’ intent to the insurance contract. Moreover, throughout these proceedings, other remedies were available to Mrs. Allen to protect her interests. Some of those remedies were pursued early on; others apparently were not. We cannot let concern for Mrs. Allen or the fact she may not have pursued all available remedies determine the outcome in this case. Our duty is to review the record before us and arrive at the result supported by the law.

[¶ 36] We hold the business, Summit Well Services, was the intended beneficiary under the policy; Principal properly paid the policy proceeds to Mr. Woodard and Mr. Nelson as authorized representatives of that business; and there was no breach of contract. This holding makes it unnecessary for us to address Principal’s claims under Wyo. Stat. Ann. § 26-15-102(d) (LexisNexis 2001) of the Wyoming Insurance Code or for equitable estoppel and ratification. Our holding also is determinative of Principal’s claim that the trial court improperly awarded attorney’s fees, costs, and interest. Wyo. Stat. Ann. § 26-15-124(c) (LexisNexis 2001) allows the award of attorney’s fees and interest where it is determined the insurance company’s refusal to pay is unreasonable or without cause. Costs are awardable under W.R.C.P. 54(d)(1) to the “prevailing party.” Having determined that payment of the policy proceeds to Mr. Woodard and Mr. Nelson was proper, we conclude no basis exists for awarding fees, costs, and interest to Mrs. Allen. Our holding likewise makes it unnecessary for us to consider the issues raised by Mr. Woodard in Case No. 01-184.

CONCLUSION

[¶ 37] We hold the trial court erred in concluding as a matter of law that the insurance contract unambiguously designated Summit Well Service, Inc. as beneficiary. Applying the applicable de novo standard of review, we hold the beneficiary designation contained in the contract is ambiguous as a matter of law. Reviewing all the circumstances surrounding formation of the contract, we are persuaded the parties’ intent was to name Summit, the business association of Mr. Allen, Mr. Woodard, and Mr. Nelson, as beneficiary under the policy. Principal properly paid the insurance proceeds to Mr. Nelson as the authorized representative of Summit, and there was no breach of contract.

[¶ 38] The judgment in favor of Mrs. Allen against Principal is reversed. The judgment in favor of Principal against Mr. Woodard and Mr. Nelson is also reversed. The cases are remanded to the trial court with directions that an amended judgment be entered which is consistent with this opinion.


source: Caselaw Access Project

author: Chief Justice MULLARKEY

license: Public Domain

text:
    TRANS SHUTTLE, INC., a Colorado corporation; and Yeshigeta Gebermichael, d/b/a Ethio Airport Shuttle, Petitioner, v. PUBLIC UTILITIES COMMISSION OF THE STATE of Colorado, Respondent.
    No. 02SA36.
    Supreme Court of Colorado, En Banc.
    Nov. 18, 2002.
    Hochstadt, Straw, Strauss, & Silverman, P.C., Richard S. Strauss, Denver, Colorado, for Petitioner.
    Ken Salazar, Attorney General, David S. Beckett, Assistant Attorney General, Denver, Colorado, for Respondent.
   Chief Justice MULLARKEY

delivered the Opinion of the Court.

Trans Shuttle, Inc. (“Trans Shuttle”) appeals from an order of the Denver District Court granting the Public Utilities Commission’s (“PUC”) motion to dismiss Trans Shuttle’s claim for lack of subject matter jurisdiction. The district court found that Trans Shuttle’s initial pleading seeking judicial review of a PUC decision, captioned as a complaint under C.R.C.P. 106, was jurisdictionally deficient because it did not comply with section 40-6-115, 11 C.R.S. (2002), the exclusive remedy provided for seeking such review. The district court further found that it could not cure the deficiencies in Trans Shuttle’s complaint through a court order. We agree that, in form, Trans Shuttle did not comply with the statutory procedures to initiate a review of a PUC decision. Substantively, however, its petition for review is sufficient to invoke the jurisdiction of the district court under section 40-6-115 and the district court had discretion to cure errors made in the pleading. We therefore reverse the judgment of the district court.

I. Facts and Procedural History

Appellant Trans Shuttle consists of two airport shuttle services that transport passengers to and from Denver International Airport. Both businesses were authorized for such transport through licenses obtained from the Federal Motor Carrier Safety Administration (“FMCSA”). The Colorado PUC, however, issued civil penalty assessments against Trans Shuttle, finding that Trans Shuttle was not authorized to conduct its businesses because it had not first obtained licenses from the PUC to transport passengers in interstate commerce.

Within thirty days of the PUC’s final decision, Trans Shuttle sought judicial review of the PUC determination, challenging the PUC’s jurisdiction to issue civil penalty assessments against carriers that are licensed by the FMCSA. In bringing its civil action, Trans Shuttle filed a complaint under C.R.C.P. 106, but cited both C.R.C.P. 106 and section 40-6-115 in the body of the pleading. In conjunction with filing the civil action, Trans Shuttle also moved for a stay of the PUC decision and for certification of the record.

The district court dismissed Trans Shuttle’s appeal, finding that filing a complaint under C.R.C.P. 106 failed to comply with the statutory procedures required under section 40-6-115, the exclusive remedy available for invoking the district court’s jurisdiction to review a PUC decision. Additionally, the district court found that it was barred from curing the complaint’s defects. Trans Shuttle appeals the district court’s ruling directly to this court pursuant to section 40-6-115(5).

II. District Court Jurisdiction

The central issue under review is whether the district court properly dismissed Trans Shuttle’s request for review of the PUC decision because it was erroneously filed as a complaint under C.R.C.P. 106. While Trans Shuttle concedes that, procedurally, it erred in titling its request as a complaint under C.R.C.P. 106 rather than a writ of certiorari under section 40-6-115, it contends that, substantively, the complaint conformed with the requisite procedures necessary for review of PUC determinations. We agree with Trans Shuttle and conclude that denying Trans Shuttle’s request for judicial review because of this procedural defect would improperly elevate form over substance.

A. Section 40-6-115

Section 40-6-115(1) of the public utilities law outlines the requisite statutory procedures for requesting review of a PUC decision as follows:

Within thirty days after a final decision by the commission in any proceeding, any party to the proceeding before the commission may apply to the district court for a writ of certiorari or review for the purpose of having the lawfulness of the final decision inquired into and determined. Such writ shall be made returnable not later than thirty days after the date of issuance and shall direct the commission to certify its record in the proceeding to said court.

§ 40-6-115(1), 11 C.R.S. (2002). The plain language of this subsection first requires that one seeking review of a PUC decision be a party to the PUC proceeding. To initiate review, such a party is required to file an application for writ of certiorari or review within thirty days after a final decision is rendered by the PUC. This application must inform the court, the PUC, and other interested parties of the particular grounds relied upon for issuance of the writ, and must direct the PUC to certify its record in the proceeding before the district court.

In denying Trans Shuttle’s request for review, the district court found that under this court’s decision in Silver Eagle Services v. PUC, 768 P.2d 208 (Colo.1989), review was precluded because Trans Shuttle failed to follow the exclusive procedures of section 40-6-115.

In Silver Eagle, Mesa Cab applied for judicial review of a PUC decision by filing a complaint in district court, invoking jurisdiction pursuant to section 40-6-115 and C.R.C.P. 106. Silver Eagle Services, 768 P.2d at 210. Under C.R.C.P. 106, the PUC was required to file an answer or responsive pleading, but it failed to do so. Id. Subsequently, Mesa Cab filed a motion for default judgment. Id. The district court granted Mesa Cab’s motion for default, finding that C.R.C.P. 106 required the PUC to file an answer to Mesa Cab’s complaint. Id.

On appeal, we found that the district court erred in entering the default judgment against the PUC because of its failure to file an answer. Id. at 212. We concluded that the pleading requirements of C.R.C.P. 106 were not applicable because they were in substantial conflict with the public utilities law and the rule must yield to section 40-6-115. Id. As a result of the district court’s actions applying the conflicting procedures of C.R.C.P 106(a)(4), the PUC was prejudiced by entry of the default judgment. Id. at 214. In reversing the district court, we held that “the statutory procedures in section 40-6-115 of the Public Utilities Law provide the exclusive method for initiating and obtaining judicial review of a PUC decision.” Id.

In this case, the district court misinterpreted our holding and failed to distinguish the facts presented in Silver Eagle from those currently under review. In Silver Eagle, this court was not concerned with the procedural use of C.R.C.P. 106 in requesting judicial review of a PUC decision. We were concerned with the substantive application of C.R.C.P. 106 and the effect of C.R.C.P. 106 on the PUC’s rights in the subsequent proceeding. Because C.R.C.P. 106(a)(4) required the PUC to file an answer not required by section 40-6-115 and thus substantively affected the PUC’s interests, we determined that the application of C.R.C.P. 106 in that case was in conflict with procedures set forth in section 40-6-115.

In contrast, although it is true that Trans Shuttle titled its application for review as a complaint under C.R.C.P. 106, the application, which cited both C.R.C.P. 106 and section 40-6-115, did not conflict with the requirements set forth in the public utilities law to invoke the subject matter jurisdiction of the district court. Trans Shuttle’s complaint substantively complied with the requirements of section 40-6-115 in that it (1) was filed by a party to a PUC proceeding; (2) was filed within 30 days of a final PUC decision; (3) informed the relevant parties of the basis of its request for review; and (4) requested certification of the PUC record to the district court.

Where an action to review a PUC final decision substantially complies with public utility law and the defective pleading causes no prejudice, that action should not be found to violate section 40-6-115. We applied this same reasoning in Ace West Trucking, Inc. v. PUC, 788 P.2d 755, 760 (Colo.1990). There, we concluded that the district court’s application of an erroneous C.R.C.P. 106(a)(4)(I) standard of review of a PUC decision was not reversible error because the district court’s determination was also correct under the proper standard mandated by section 40-6-115. Id. As such, the substantive rights of the parties in Ace West were not affected by the error.

The district court’s, finding that it lacked subject matter jurisdiction over Trans Shuttle’s C.R.C.P. 106 application for review was in error. Subject matter jurisdiction is defined only as a court’s power to resolve a dispute in which it renders judgment. In re Marriage of Stroud, 631 P.2d 168, 170 (Colo.1981). Whether a court possesses such jurisdiction is generally only dependent on the nature of the claim and the relief sought. Santa’s Workshop v. A.B. Hirschfeld Press, Inc., 851 P.2d 264, 265-66 (Colo.App.1993) (rejecting a procedural challenge to the court’s jurisdiction where court had the authority to hear a petition concerning the valuation of corporate stock). The underlying principle that should guide the district court was well stated by our court of appeals in another context. “We are not bound by the form in which the plaintiff asserts its claim, but rather it is the facts alleged and the relief requested that decide the substance of a claim, which in turn is determinative of the existence of subject matter jurisdiction.” City of Boulder v. Public Serv. Co. of Colo., 996 P.2d 198, 203 (Colo.App.1999).

In practical terms, the PUC, although inconvenienced, will not be prejudiced if Trans Shuttle’s improper filing is allowed to stand. The PUC will certify the record and the judicial review will proceed. However, if the district court decision were affirmed, Trans Shuttle would be harmed because it would have no avenue of relief to resolve the alleged mistake made by the PUC. Simply put, Trans Shuttle could not have its day in court.

We emphasize, however, that although we hold that Trans Shuttle’s application was adequate to invoke the jurisdiction of the district court, we do not condone the pleading filed here. The law is clearly established in section 40-6-115 and Silver Eagle. This poorly framed complaint caused unnecessary delay and added expense to the parties and the courts.

B. District Court Authority to Order Complaint Amended

As our holding on the merits implies, we reject the district court’s decision that it could not cure the procedural defects in Trans Shuttle’s filings by court order. After identifying the error, the district court should have given Trans Shuttle the opportunity to amend its request for review and formally comply with section 40-6-115 procedures. See, e.g., Archibold v. PUC, 933 P.2d 1323, 1325-26 (Colo.1997) (during the course of proceedings, finding it lacked jurisdiction over claims requesting declaratory or injunc-tive relief in PUC cases, district court gave plaintiffs leave to amend their complaint). A primary purpose of courts is to provide a forum for litigating disputes. Therefore, “[ujnless enforcement of procedural requirements is essential to shield substantive rights, litigation should be determined on the merits and not on the basis of technical rules.” People v. Dickinson, 197 Colo. 338, 339, 592 P.2d 807, 808 (Colo.1979). Because Trans Shuttle met the jurisdictional requirements for review of a PUC decision, the district court should have permitted Trans Shuttle to cure the technical deficiencies in its complaint.

III. Conclusion

We accordingly reverse the district court order dismissing Trans Shuttle’s request for review of the PUC decision and remand the case to that court for further proceedings consistent with this opinion.

      . C.R.C.P. 106(a)(4)(H) states: "Review pursuant to this subsection (4) shall be commenced by the filing of a complaint. An answer or other responsive pleading shall then be filed in accordance with the Colorado Rules of Civil Procedure.”

        . The relevant subsection of section 40-6-115(4) states: "The provisions of the Colorado rules of civil procedure relating to writs of certiorari or review, so far as applicable and not in conflict with the provisions of this title, shall apply to proceedings had in the district court under the provisions of this section.” (emphasis added).


author: Justice BENDER

text:
    Todd BYRD, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 01SC850.
    Supreme Court of Colorado, En Banc.
    Nov. 18, 2002.

      Fife & , McCullough, P.C., Michael A. McCullough, Kirsten E. Tucker, Denver, Colorado, for Petitioner.
    Mark M. Myers, District Attorney, Ninth Judicial District, Katharine T. Sullivan, Deputy District Attorney, Aspen, Colorado, for Respondent.
   Justice BENDER

delivered the Opinion of the Court.

I. Introduction

In this case we consider whether a court may apply the doctrine of issue preclusion to bar a defendant’s right to trial on a criminal charge when the same factual issue was previously determined in the prosecution’s favor in a probation revocation hearing. Because probation revocation hearings are held for different purposes than criminal trials, use different procedures, and do not protect a defendant’s rights as required by the Federal and Colorado Constitutions for a criminal trial, we hold that issue preclusion does not apply for two reasons. First, a threshold requirement of issue preclusion was not met because the defendant did not have a full and fair opportunity to litigate the issue in the revocation hearing. Second, a determination of guilt or innocence in a probation revocation hearing would undermine the function of the criminal trial process. In other words, a finding in a probation revocation hearing that a new crime occurred does not operate to preclude the right of an accused to a trial on the newly charged crime. Hence, we reverse the judgment of the district court and remand this case to the district court with directions to return the case to the county court for trial.

II. Facts and Proceedings Below

Defendant Todd Byrd was placed on felony probation for crimes not connected to these proceedings. During his probationary term, he was charged with the crime of driving with a revoked license, which constituted both a violation of his probation and a new criminal act. Thereafter, the prosecution sought to revoke the defendant’s probation on the basis of this new criminal charge. The prosecution also charged him with driving under revocation pursuant to section 42-2 — 138(l)(a), 11 C.R.S. (2002). Before trial on the criminal charge occurred in county court, the district court found that the defendant had violated the terms of his probation because he drove while his license was revoked.

After this hearing, the defendant, who waived his right to a jury trial, appeared before the county court ready for trial on the new criminal charge. The prosecution moved for an immediate finding of guilt under a “res judicata or claim preclusion theory.” The prosecution argued that at the defendant’s probation revocation hearing, the district court entered a final judgment finding the defendant had driven while his license was revoked and therefore, the district court had already decided the issue to be litigated in the trial. The trial court, relying upon O’Neill v. Simpson, 958 P.2d 1121,1123 n. 5 (Colo.1998), concluded that the prosecution satisfied all of the requirements of the doctrine of issue preclusion and entered a judgment of conviction against Byrd without holding a trial.

The defendant appealed to the district court, which affirmed the conviction. The district court reasoned that the issue in the probation revocation hearing and trial was the same, that the parties were the same, and that the district court had previously entered a final judgment on the merits at the revocation hearing and accordingly, the doctrine applied.

The defendant petitioned this court for certiorari pursuant to C.A.R. 52(a) and section 13-6-310(4), 5 C.R.S. (2002). We granted certiorari on the issue of “whether the district court violated the defendant’s constitutional rights when it estopped him from adjudicating the criminal charge against him and entered a judgment of guilty without a trial based upon the outcome of a probation revocation hearing.”

III. Analysis

1. Issue Preclusion

We begin by briefly discussing the principles of issue preclusion, or collateral estoppel. This doctrine generally bars relit-igation of an issue that was actually determined in a prior action between the same parties. See, e.g., Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Its purpose is to promote judicial economy, to conserve private resources, and to protect parties from unnecessary or vexatious litigation. People v. Allee, 740 P.2d 1, 4 (Colo.1987). Initially developed in the context of civil litigation, most courts have applied issue preclusion in criminal cases as well, at least when its application benefits the defendant. As we stated in People v. Smith, 938 P.2d 111, 113 (Colo.1997), “The fundamental principal of collateral estoppel [in a criminal case] is that the defendant should be protected from having to relitigate an issue of ultimate fact once that issue has been determined by a valid and final judgment.” When used to benefit a defendant, the doctrine has been viewed as being embodied in the Fifth Amendment’s guarantee against double jeopardy. People v. Kernanen, 178 Colo. 234, 237, 497 P.2d 8, 10 (1972); Ashe, 397 U.S. at 445, 90 S.Ct. 1189.

Although courts in other jurisdictions have held that the government may not invoke issue preclusion in a criminal case against a defendant, we have not decided this issue, and we do not reach that issue here.

We have, however, previously determined that this doctrine may be invoked by the accused in a criminal case. In Williamsen v. People, 735 P.2d 176,182 (Colo.1987), a criminal case in which a defendant sought in part to use issue preclusion in his favor, we set forth the elements required to satisfy the doctrine: (1) the issue sought to be precluded must be identical to an issue actually and necessarily decided in a prior proceeding; (2) there must have been a final judgment on the merits in the first proceeding; (3) there must be identity of parties or privity between the parties against whom the doctrine is asserted; and (4) the party against whom issue preclusion is asserted must have a full and fair opportunity to litigate the issue in the prior proceeding. Later, in Allee, we stated that while courts may apply the doctrine liberally in a civil context, issue preclusion should be applied more conservatively in criminal cases because “it is the correctness of the result which is of pre-eminent concern in a criminal prosecution,” rather than conserving time and resources. 740 P.2d at 9 (citing People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783, 789-90 (1980).) We further note here that the public policies underlying the doctrine of issue preclusion — preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment from vexatious litigation — will influence our determination of whether its application would be fair to the parties and constitute sound judicial decision making. See Salida Sch. Dist. R-32-J v. Morrison, 732 P.2d 1160, 1163 (Colo.1987); Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223, 1227 (1990).

In addition to outlining the elements of the doctrine in Williamsen, we stated that the Restatement (Second) of Judgments (1980) includes exceptions to the general rule of issue preclusion, and in certain circumstances, even if the elements are satisfied, courts should not preclude the relitigation of an issue. 735 P.2d at 182. Section 28(3) of the Restatement states that relitigation of an issue is not precluded when “[a] new determination of the issue is warranted by differences in the quality or extensiveness of the pi'ocedures followed in the two courts.... ” Comment d to section 28 further states that a compelling reason may exist not to apply issue preclusion when “the procedures available in the first court ... have been tailored to the prompt, inexpensive determination of small claims.... ” Thus, the procedures of the first proceeding “may be wholly inappropriate to the determination of the same issues when presented in the context of a much larger claim.” See also Salida School Dist. R-32-J, 732 P.2d at 1165; Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 48 (Colo. 2001). We read these exceptions and public policies that underlie issue preclusion as interrelated, and we consider both in our analysis.

In Williamsen, we considered in part whether a defendant could use an acquittal resulting from a hearing on a traffic infraction to invoke issue preclusion and prevent the introduction of that infraction in a subsequent criminal trial. We concluded that the prosecution was not barred from introducing evidence of the infraction even though the defendant had previously been acquitted on that charge. 735 P.2d at 183. We reasoned that “[t]he salutary purposes of informal traffic infraction hearings would be frustrated if collateral estoppel were to be applied so as to limit a full and fair consideration of the issue in a criminal trial.” Id. (comparing Salida School District, 732 P.2d at 1165 (the purposes of an unemployment hearing would be frustrated if issue preclusion were applied to bind parties in a subsequent civil trial.)) Thus, Williamsen stands for the proposition that if the purposes and procedures are significantly different, then the fourth element of issue preclusion has not been satisfied because the party against whom the doctrine is asserted did not have a full and fair opportunity to litigate the issue in the prior proceeding.

2. Probation revocation hearings are held for different purposes, governed by different procedures, and do not protect a defendant’s rights as does a criminal trial

Our precedent differentiates probation revocation hearings from criminal trials. While the prosecution must prove both a criminal violation of a probation condition and a criminal offense beyond a reasonable doubt, the proceedings function differently. As we held in People v. Ressin, 620 P.2d 717, 720 (Colo. 1980), “[tjhere are critical differences between a criminal trial and a probation revocation proceeding.” See also People v. Atencio, 186 Colo. 76, 78, 525 P.2d 461, 462-63 (1974). These differences appear in stark contrast when we compare the purposes of each proceeding, the procedures that govern the process, and the rights afforded to the accused.

The purpose of a probation revocation hearing is to consider the conduct of the defendant after an adjudication of guilt and to assess the correctness of the original sentence. People ex. rel. Gallagher v. District Court, 196 Colo. 499, 502, 591 P.2d 1015, 1017 (1978). Probation is a privilege, not a right, and if a probationer violates any probationary condition, her probation may be revoked. People v. Ickler, 877 P.2d 863, 866 (Colo.1994).

Parties in probation revocation proceedings present the probationer’s activities to the court consistent with relaxed rules of evidence. Holdren v. People, 168 Colo. 474, 479, 452 P.2d 28, 30 (1969); Gehl v. People, 161 Colo. 535, 539, 423 P.2d 332, 334 (1967). The court determines whether a violation occurred and then exercises its discretion and expeditiously determines whether continuing probation is effective in rehabilitating the probationer or whether the probationer should be resenteneed to confinement. See Ressin, 620 P.2d at 719; Maine v. Reed, 686 A.2d 1067, 1069 (Me.1996). In making this determination, the sentencing court balances the probationer’s interest in demonstrating a responsible lifestyle with society’s interest in seeking protection against the possibility of recidivism. Reed, 686 A.2d at 1069.

On the other hand, the primary purpose of a criminal trial is to determine the factual question of a defendant’s guilt or innocence based on a fair determination of the truth. Gray v. District Court, 884 P.2d 286, 291 (Colo.1994); People v. Jiminez, 863 P.2d 981, 987 (Colo.1993)(Rovira, C.J., dissenting); Allee, 740 P.2d at 9. A criminal trial concerns whether the state proves the guilt of the accused and accordingly implicates the full array of constitutional protections attendant to the criminal process. Ressin, 620 P.2d at 720.

Because probation revocation hearings are less formal, and probation itself is only a conditional suspension of what would otherwise have been a harsher sentence, simplified procedures exist. Gehl, 161 Colo, at 539, 423 P.2d at 334. As we stated in Aten-cio and reiterated in People v. Allen, 973 P.2d 620, 622 (Colo.1999), only the following due process requirements at probation revocation hearings are required: (1) written notice of the alleged probation violations; (2) disclosure to the probationer of evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; and (5) a written or oral statement on the record made by the fact finder as to the evidence relied on and the reasons for revoking probation.

In addition to the different purposes and procedures of a probation revocation hearing and a criminal trial, the rights extended to a probationer are significantly reduced when compared to the accused facing criminal charges. While a probationer enjoys minimum procedural due process rights at a revocation hearing, “he is not entitled to the full panoply of constitutional guarantees available to one who has not been convicted of a crime....” People v. Wilkerson, 189 Colo. 448, 451, 541 P.2d 896, 898 (1975). A probationer has no right to a jury at a revocation proceeding. § 16-11-206(1), 6 C.R.S. (2002). She is not permitted to plead “not guilty by reason of insanity.” Gallagher, 196 Colo, at 502, 591 P.2d at 1016; § 16-ll-206(2)(a probationer may plead “guilty or not guilty.”). Courts presiding over revocation hearings are not required to give defendants affirmative Curtis advise-merits of the right to testify. Allen, 973 P.2d at 622.

Because revocation hearings are more informal than trials, the rules of evidence in probation revocation hearings are relaxed. Atencio, 186 Colo, at 79, 525 P.2d at 462. All probative evidence is admissible so long as a defendant has the opportunity to rebut hearsay, and the exclusionary rule is inapplicable in probation revocation hearings absent governmental activity that constitutes bad faith, harassment, gross impropriety, or another form of egregious misconduct. Ressin, 620 P.2d at 720-21; see also Wither son, 189 Colo. at 451, 541 P.2d at 898 (a defendant in a probation revocation hearing “cannot complain of the admission of illegally seized evidence.”); Allen, 973 P.2d at 623 (“all probative evidence is admitted ... even though it might not have been admissible in the criminal trial”); § 16-ll-206(3)(“Any evidence having probative value shall be received regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.”).

Finally, although Colorado courts have not yet ruled on several rights granted to the accused at trial but denied to defendants contesting revocation of probation, we note that this body of law supports the distinction that we have made in orn-ease law between trials and probation revocation hearings. Confessions by probationers in revocation hearings may be admissible, even if obtained in violation of Miranda rights. While a probationer retains her Fifth Amendment privilege to refuse to answer incriminatory questions, the prosecution may call her as a witness at a revocation hearing. The Fifth Amendment permits a probationer to decline to answer specific questions at the revocation hearing, but this refusal to answer may be used against her to revoke probation. See also 5 Wayne R. LaFave et al., Criminal Procedure § 26.10(c)(2d ed.1999).

The numerous distinctions between a probation revocation hearing and a criminal trial compel us to conclude that a probation revocation hearing is held for different purposes, is governed by different procedures, and does not protect the defendant’s rights as required by the Federal and Colorado Constitutions for a criminal trial.

3. Issue preclusion based upon a revocation of probation does not bar the right of the defendant to a trial

We are aided by decisions of other courts in our determination that issue preclusion does not apply to bar the defendant from having a criminal trial. Some courts have concluded that even if the threshold elements of issue preclusion have been satisfied, underlying policies prevent the doctrine’s application. Other courts have determined that because of the differences between revocation hearings and criminal trials, a requirement of the doctrine has not been satisfied and issue preclusion does not apply. We conclude that a threshold requirement was not satisfied, and an application of issue preclusion would contravene public policy that the doctrine was designed to foster.

In reaching this conclusion, we find persuasive the analysis of the Vermont Supreme Court, which addressed whether a criminal defendant could invoke issue preclusion based on a favorable ruling to bar a subsequent trial. State v. Brunet, 806 A.2d 1007 (Vt.2002). The court determined that several of the requirements — identity of parties, identity of issue, and a final judgment on the merits — were satisfied. Id. at 1010. In reaching the conclusion that issue preclusion was improper, the court focused on whether the state had a full and fair opportunity to litigate the issue in the revocation proceeding and whether applying the doctrine would “serve the interests of justice.” Id. In other words, the Brunet analysis incorporated the doctrine’s underlying policies into the threshold elements of issue preclusion. We employ the same analysis here.

Initially, we note that the first three elements outlined in Williamsen are met. The issue in the revocation hearing — whether the defendant drove under revocation — is identical to the issue that would have been litigated at trial. Further, there was a final judgment by the district court on the merits, and the same parties were involved in both-proceedings. We focus our analysis, therefore, on the fourth requirement: that the party against whom issue preclusion is asserted must have a full and fair opportunity to litigate the issue in the prior proceeding.

In determining whether this element was met, we turn to our precedent in Wil-liamsen and reason that it applies here. Although a traffic infraction hearing and a probation revocation hearing are not identical, they are both less formal than a criminal trial. The Williamsen court addressed the procedural informalities of traffic infraction hearings and concluded that the parties did not have a full and fair opportunity to litigate the issue as they would have at a criminal trial. Because an application of issue preclusion to bar the relitigation of the issue at trial would frustrate the purposes of a traffic hearing, the doctrine did not apply. Though not explicitly, Williamsen implicitly incorporated the exception to issue preclusion that “a new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts” into the fourth requirement of issue preclusion. Williamsen stands in part for the proposition that when two proceedings are procedurally different, a party seeking to invoke issue preclusion does not satisfy the requirement that there was a full and fair opportunity to litigate the issue in the prior proceeding. Thus, we conclude that Byrd did not have the full and fair opportunity to litigate the issue of whether he was driving under revocation at the probation revocation hearing.

Our conclusion that the prosecution failed to satisfy the fourth requirement of issue preclusion is buttressed by the public policies which support the application of the doctrine. We find persuasive the statement of the California Supreme Court that “[p]re-emption of trial of a new charge by a revocation decision designed to perform a wholly independent social and legal task would undermine the function of the criminal trial process as the intended forum for ultimate determinations as to guilt or innocence of newly alleged crimes.” Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223, 1231 (1990). To apply issue preclusion to bar a trial would undermine the basic and fundamental functions of a criminal trial — to determine the guilt or innocence of the accused using a panoply of procedures and protections designed and developed over many years to ensure a fair search for the truth. The law, the evidence, and the incentives to litigate in a probation revocation dramatically differ from that of a criminal trial. When the prosecution prevailed at the revocation hearing, the result was not a new criminal conviction, as it would have been had the prosecution prevailed at trial. Instead, the sentencing court was limited to imposing a harsher sentence or in some way continuing the probation, perhaps by modifying its terms. Issue preclusion would permit a determination of guilt absent the constitutional protections a trial affords. Such an outcome would directly contravene the public policy consideration of promoting the integrity of judicial determinations. See Lucido, 272 Cal.Rptr. 767, 795 P.2d at 1232; Pennsylvania v. Cosgrove, 427 Pa.Super. 553, 629 A.2d 1007, 1011 (1993); Krochta v. Massachusetts, 429 Mass. 711, 711 N.E.2d 142, 148 (1999).

Issue preclusion fosters judicial economy. Although an application of issue preclusion in this context would reduce the number of court proceedings, judicial economy must yield in favor of preserving the criminal trial process as the exclusive forum in which to decide guilt or innocence for new crimes. Lucido, 272 Cal.Rptr. 767, 795 P.2d at 1232; State v. McDowell, 242 Conn. 648, 699 A.2d 987, 991 (1997).

Finally, issue preclusion protects parties from vexatious litigation, which means harassment by frivolous, groundless, or bad faith litigation. Lucido, 272 Cal.Rptr. 767, 795 P.2d at 1232; see also In re Estate of Finkelstein v. Kissell, 817 P.2d 617, 620 (Colo.App.1991). While issue preclusion would insulate the prosecution from consecutive proceedings arising out of the same facts, vexatious litigation means more than repetitious litigation. Because of the public’s legitimate expectation that a person found guilty of a crime may be held to terms of probation as well as be tried for a new offense if the prosecution so determines, it is not vexatious to subject a probationer to both a revocation hearing and a criminal trial.

IY. Conclusion

For the reasons stated, we reverse the judgment of the district court and remand this case to the district court to return the case to county court for trial.

      . On other occasions, we have stated that it is better practice to continue a probation revocation hearing until after a trial on a new charge. However, this timing decision lies within the discretion of the trial court. People v. Ray, 192 Colo. 391, 395, 560 P.2d 74, 76-77 (1977)(citing People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974)); see also § 16-11-206(3), 6 C.R.S. (2002)("The court may ... continue the probation revocation hearing until the termination of the criminal proceeding.”).

      . Although the district court did not specifically articulate the prosecution’s burden of proof beyond a reasonable doubt as required by section 16-11-206(3), 6 C.R.S. (2002), we have held that • in a revocation proceeding the court is entitled to a presumption that it applied the correct burden of proof. People v. Carr, 185 Colo. 293, 298, 524 P.2d 301, 303 (1974).

      . We prefer to use the terms “claim preclusion” and "issue preclusion” rather than "res judicata” and "collateral estoppel.” As we noted in Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189, 196 n. 11 (Colo.1999), "we have used 'claim preclusion’ interchangeably with res judicata and the phrase 'issue preclusion’ interchangeably with collateral estoppel.”

      . This case concerns issue preclusion, not claim preclusion. Claim preclusion bars a subsequent action when parties or parties in privity have previously litigated the claim to a valid, final judgment. Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195 (1876). The claims in probation revocation hearings and criminal trials are different, even though the issue presented in the proceedings — in this case whether the defendant drove under revocation — may be the same. See Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223, 1225 n. 3 (1990).

      .In addition to the application of the doctrine by the courts in criminal cases, the General Assembly has codified aspects of issue preclusion in the criminal code in sections 18-1-301 to - 303, 6 C.R.S. (2002), mandating that a second trial is barred for the same offense or if there has been a prior determination of an ultimate fact, and extending the double jeopardy prohibition to situations where the dual sovereignty doctrine otherwise would permit state prosecution after a separate sovereign has prosecuted the defendant for the same offense.

      . Cf. United States v. Dixon, 509 U.S. 688, 710 n. 15, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)("Under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), an acquittal in the first prosecution might well bar litigation of certain facts essential to the second one — though a conviction in the first prosecution would not excuse the Government from proving the same facts the second time”); Ashe, 397 U.S. at 465, 90 S.Ct. 1189 ("If [the defendant] had been convicted at the first trial, presumably no court would then hold that he was thereby foreclosed from litigating the identification issue at the second triaI.”)(Burger, C.J., dissenting); United States v. Pelullo, 14 F.3d 881, 896 (3d Cir.1994)(the right to a jury trial "necessitates that every juiy empaneled for a prosecution considers evidence of guilt afresh and without the judicial direction attending collateral estoppel.”); United States v. Panetta, 436 F.Supp. 114, 122 (E.D.Pa.1977), affd 568 F.2d 771 (3d Cir.l978)(holding that offensive collateral estop-pel "would be the same as a partially directed verdict of guilty and clearly would infringe upon [the defendant's] constitutionally protected right to a jury trial”); People v. Goss, 446 Mich. 587, 521 N.W.2d 312, 321 (1994)(“[issue preclusion] would impermissibly disable the presumption of innocence an accused is entitled to in accordance with due process guaranteed under the federal and state constitutions.”)(Brickley, J., concurring).

      . See § 16-11-206(3), 6 C.R.S. (2002); People v. Carr. 185 Colo. 293. 298. 524 P.2d 301, 303 (1974).

      .These elements do not directly correspond to those set forth in Atencio and Allen because both of those cases addressed due process requirements for both probation and parole revocation hearings. Unlike a parole hearing, a court rather than a " 'neutral and detached hearing body,’ members of which need not be judicial officers or lawyers” must determine whether to revoke or modify a term of probation. Allen, 973 P.2d at 622. Further, a court’s oral findings made on the record satisfy the constitutional requirement of a "written statement.” People v. Elder, 36 P.3d 172, 174 (Colo.App.2001).

      . See also People v. Kelly, 919 P.2d 866, 867 (Colo.App.1996); Atencio, 186 Colo, at 80, 525 P.2d at 463; Holdren, 168 Colo, at 479, 452 P.2d at 30; Gehl, 161 Colo, at 539, 423 P.2d at 334-35.

      . See, e.g., State v. Mason, 56 Or.App. 164, 641 P.2d 1139, 1141 (1982); People v. Peterson, 74 Ill.2d 478, 23 Ill.Dec. 554, 384 N.E.2d 348, 350 (1978);. See also Phillip E. Hassman, Annotation, Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 1976 WL 38663 (1976).

      . United States v. Ross, 9 F.3d 1182 (7th Cir.1993); Asherman v. Meachum, 957 F.2d 978 (2d Cir.1992); Wilson v. State, 621 P.2d 1173 (Okla.Cr.1980); see also State v. Burow; 223 Neb. 867, 394 N.W.2d 665 (1986)(the court need not inform the defendant of the privilege against self-incrimination before hearing the defendant’s testimony).

      . United States v. Robinson, 893 F.2d 1244, 1245 (11th Cir.l990)(when the defendant "failed to report ... activities completely and truthfully as per the terms of his probation, he committed a probation violation.”); (Minnesota v. Murphy, 465 U.S. 420, 436 n. 7, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984))("[A] State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.”).

      . See, e.g., State v. McDowell, 242 Conn. 648, 699 A.2d 987 (1997); State v. Reed, 686 A.2d 1067 (Me.1996); Pennsylvania v. Cosgrove, 427 Pa.Super 553, 629 A.2d 1007 (1993); People v. Johnson, 191 Mich.App. 222, 477 N.W.2d 426 (1991); Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223, 1231 (1990); State v. Jones, 196 Ga.App. 896, 397 S.E.2d 209 (1990); People v. Fagan, 66 N.Y.2d 815, 498 N.Y.S.2d 335, 489 N.E.2d 222 (1985).

      . See, e.g., United States v. Miller, 797 F.2d 336 (6th Cir.1986); Arizona v. Williams, 131 Ariz. 211, 639 P.2d 1036 (1982).

      . Brunet and several other courts cited here concluded that an application of issue preclusion was improper in part because prosecutors are held to a lower standard of proof to establish a violation of probation. In Colorado, prosecutors are held to the same standard of proof, beyond a reasonable doubt, in probation revocation hearings and criminal trials unless the probationer has been convicted thereof in a criminal proceeding. § 16-11-206(3). We acknowledge this difference between other cases and the one before us, but still find the reasoning of other courts persuasive.

      . For a similar analysis, see also State v. Terry, 239 Wis.2d 519, 620 N.W.2d 217 (2000), in which the Wisconsin Court of Appeals incorporated public policy considerations into the traditional issue preclusion elements.

      . Several courts have concluded that an application of issue preclusion to bar a criminal trial based on a decision at an earlier probation revocation hearing would "undermine the interests of justice, and erode public confidence in the criminal justice system.” Brunet, 806 A.2d at 1012. See also United States v. Miller, 797 F.2d 336, 342 (6th Cir.1986) ("The government is not required to complete its entire investigation before seeking to revoke an individual’s probation, nor would such a requirement be in society’s best interest.”); State v. McDowell, 242 Conn. 648, 699 A.2d 987, 991 (1997) ("public confidence in our criminal justice system” requires that only criminal trials be used to determine guilt or innocence); People v. Fagan, 66 N.Y.2d 815, 498 N.Y.S.2d 335, 489 N.E.2d 222, 222 (1985) ("Strong policy considerations militate against giving issues determined in prior litigation pre-clusive effect in a criminal case” because a "correct determination of guilt or innocence is paramount in criminal cases”); State v. Dupard, 93 Wash.2d 268, 609 P.2d 961, 965 (1980) (whether a defendant committed a new crime "is more appropriately addressed to the criminal justice system” than the informal revocation process).


author: WATT, Vice Chief Justice.

text:
    2002 OK 58
    Linley Lynae FLOYD, Petitioner, v. TACO MAYO/ACCORD HUMAN RESOURCES, Credit General Guaranty Fund, and The Workers’ Compensation Court, Respondents.
    No. 96,723.
    Supreme Court of Oklahoma.
    June 25, 2002.
    Rehearing Denied Nov. 19, 2002.
    Michael E. Utter, Oklahoma City, OK, for Petitioner.
    H.A. Carter III, Oklahoma City, OK, for Respondents.
   OPINION

WATT, Vice Chief Justice.

FACTS AND PROCEDURAL BACKGROUND

¶ 1 Respondent, Accord Human Resources, owns and operates a Taco Mayo restaurant in Tecumseh, Oklahoma. The restaurant is managed by Pat McConnell, who co-owns it with his father, Phil McConnell. Petitioner, Linley Lynae Floyd, is Pat McConnell’s sister and Phil McConnell’s daughter. Floyd worked part time for the McConnells in their restaurant and the McConnells allowed Floyd to eat free meals there at any time. The McConnells also provided meals for their other employees at half price, provided the meals were eaten within thirty minutes before their shifts began or thirty minutes after they ended.

¶ 2 Floyd had a full time day job in an insurance business but also worked at the Taco Mayo as a part time employee. Although she was not scheduled to work on the day she was injured, Floyd went to the restaurant to eat at about 6:00 p.m. that day, May 6,1999. When she arrived, her brother asked her if she could work because they were busy. Floyd agreed and worked from 6:00 p.m. until 9:00 p.m., at which time she signed out on a time sheet form used by the restaurant to account for its employees’ time.

¶3 Floyd testified that she was free to leave the restaurant after her shift but that she chose to stay and eat. As she was completing her meal at about 9:15 or 9:20 p.m., Floyd went to the self-serve drink machine to refill her drink. She slipped on a wet place on the floor, fell and injured her left knee. The dining room was closed at 9:00 p.m. and there were apparently no customers there when Floyd fell. Sometime after 9:00 p.m. another restaurant employee had apparently removed a mat from in front of the drink machine while cleaning the restaurant’s floor.

¶ 4 After Floyd fell, her brother called an ambulance and she was taken to a Shawnee hospital for treatment. Floyd was treated and released, returned to work within a few days, and later took a full time job at the restaurant. Floyd did not initially file a claim in the Workers’ Compensation Court. Instead, she filed a common law negligence claim against the restaurant under its liability policy. Floyd was paid $1,000.00 in medical pay by the restaurant’s insurance carrier as a result of her claim. On October 2, 1999, while she was working for the restaurant on a full time basis, Floyd had another accident and re-injured her left knee, which injury was followed by arthroscopic surgery on October 25, 1999. Floyd filed a Form 3, Employee’s First Notice of Accidental Injury and Claim for Compensation, for the injury at issue here on January 24, 2001 and filed another Form 3, apparently at or near the same time, for the later October 2, 1999 injury.

¶ 5 Respondents claim and Floyd does not deny that Floyd’s knee surgery was paid for by compensation benefits flowing from her claim for compensation from her second knee injury of October 2. Floyd resigned from her job in her family’s restaurant sometime after her October 2 injury and before she filed her claims for compensation under circumstances that her brother described as having generated “ill will or problems.”

¶ 6 In its order the Workers’ Compensation Court found:

—1.—
THAT at the time of the incident causing injury to the claimant’s LEFT LEG (KNEE), she was “clocked out” and was performing personal activities (eating) which were not related to her work duties.
—2.—
THAT the claimant failed to establish that she sustained an accidental personal injury arising out of and in the course of her employment to her LEFT LEG (KNEE) on or about May 6, 1999.

Based on the foregoing findings, the trial court denied Floyd’s claim for compensation.

ISSUE
¶ 7 Does the record support the trial court’s finding that Floyd was engaged in a personal task when she was injured and that her injury was, therefore, not compen-sable under the Workers’ Compensation Act?

We hold that the record supports the trial court’s conclusion that Floyd’s activity, eating, at the time of her injury was “purely personal,” under 85 O.S.2001 § 3(12)(a), and was, therefore, not compensable.

DISCUSSION

¶ 8 Floyd relies on our opinion in Turner v. B Sew Inn, 2000 OK 97, 18 P.3d 1070, to support her contention that the trial court erred in finding that her injury was not compensable. In Turner, we held that claimant-employee, who worked in respondent-employer’s retail sewing machine and sewing supply store, suffered a compensable injury. The plaintiff fell and injured herself in a shopping center parking lot while she was on her way to her job. The employer’s store was in the shopping center and the employer asked its employees to arrive early enough to be available to greet customers when the store opened in the morning. The employer further told her employees to park in areas of the parking lot that were not near her store’s front door because she wanted to reserve the near-by places for her customers.

¶ 9 In Turner we noted that the Workers’ Compensation Act requires that in order to be compensable an injury must be one “arising out of and in the course of employment.” 85 O.S.2001 § 11(A). Although we held in Turner that plaintiffs injury was compensa-ble, we did so because “Nothing in the record establishes that her presence in the parking lot was in the furtherance of a personal purpose." [Emphasis added.] Turner, 2000 OK 97 at ¶ 25,18 P.3d 1070. Here, however, Floyd was admittedly eating when she fell and was injured. Our analysis of the Workers’ Compensation Act and of our opinions construing it convinces us that when Floyd was injured she was not engaged in an activity “arising out of and in the course of employment.”

¶ 10 In Fox v. National Carrier, 1985 OK 91, 709 P.2d 1050 this Court held that a truck driver had suffered a compensable injury when he choked on a piece of sausage and injured his neck in a restaurant where he had stopped to eat. The Court based its holding on its conclusion that stopping to eat was necessarily incidental to the work of a traveling employee. But in 1986 in an apparent expression of disagreement with the Fox opinion, the Legislature amended what is now 85 O.S.2002 § 3(12). In § 3(12) the legislature declared, “Only injuries having as their source a risk not purely personal but one that is causally connected with the conditions of employment shall be deemed to arise out of the employment.” [Emphasis added.] At the same time the Legislature repealed 85 O.S.1991 § 27 (repealed, Laws 1986), which had created a presumption that an injury was compensable, which presumption could be overcome only if the employer produced “substantial evidence” to the contrary.

¶ 11 We considered the legislative change to the Workers’ Compensation Act in American Management Systems v. Burns, 1995 OK 58, 903 P.2d 288. We expressly recognized that the legislative change “plainly contravenes this court’s pronouncement in Fox v. National Cariier.” Bums, at ¶ 7. There, we concluded that the changes required the risk responsible for the injury to be causally connected with the employment.

¶ 12 We again examined the issue of what conduct is “purely personal” in Corbett v. Express Personnel, 1997 OK 40, 936 P.2d 932. There, the plaintiff-employee was injured when he collided with the fence surrounding his employer s parking lot as he was driving his motorcycle to his bank. After reviewing the legislative changes that followed Fox, we said, “Claimant’s presence in the parking lot provided for employees does not ipso facto make his injury compen-sable.” Corbett, at ¶ 9. We affirmed the Workers’ Compensation Court based on its factual finding that the claimant was on a personal mission, noting that decisions of the Workers’ Compensation Court “are conclusive and binding on appellate courts” and that such findings are “impervious to vacation.” Corbett at ¶ 11.

¶ 13 Given the legislative changes that followed Fox and our responses to them the record support for the trial court’s factual finding that Floyd’s activity when she was injured was personal makes its conclusion that her injury was not compensable “impervious to vacation.” Corbett at ¶ 11; Parks v. Norman Municipal Hospital, 1984 OK 53 ¶ 12, 684 P.2d 548, 552.

¶ 14 Floyd seeks to distinguish this case from Bums, Corbett, and Parks and place it within the ambit of Turner by arguing that her injury was work related because it occurred within the thirty minute period after her shift ended during which the restaurant furnished discounted meals to its employees. We find no analogy to Turner here, however. In Turner the plaintiffs employer required her to be in the shop and ready to greet customers when the doors opened. Thus, she had to be in the parking lot at a time earlier than the shop was scheduled to open in order to fulfil the requirements of her job. Here, however, the record reveals that Floyd was free to leave her employer’s premises immediately after her shift ended and remained there only to eat the meal available to her should she decide to eat it. By staying in the restaurant in order to eat a free meal, Floyd was in no way carrying out a requirement of her job.

¶ 15 We reject the notion that the fringe benefit provided by Floyd’s employer, a free meal, converted her personal decision to stay and eat that free meal into a duty of her employment or an incident to it, which would subject her employer to liability. We hold, therefore, that the trial court’s order finding that at the time Floyd was injured she “was performing personal activities (eating) which were not related to her work duties” is supported by the record and its conclusion that her injury was not compensable is supported by the law.

¶ 16 Finally, we note that the trial court’s finding of fact that Floyd was performing a purely personal activity when she was injured is supported by competent evidence. Thus, that finding is “conclusive and binding” on this Court and not subject to reversal. Corbett at ¶ 11, Parks at ¶ 12. Consequently, we affirm the trial court’s order denying Floyd’s claim.

CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS’ OPINION VACATED, ORDER OF WORKERS’ COMPENSATION COURT AFFIRMED.

HARGRAVE, C.J., HODGES, OPALA, KAUGER, BOUDREAU, and WINCHESTER, JJ., concur.

LAVENDER and SUMMERS, JJ. dissent.