author: GOLDEN, Justice.

text:
    Donald E. BENDER, Appellant (Plaintiff), v. James E. PHILLIPS and John A. Thomas, Appellees (Defendants). James E. Phillips, Appellant (Defendant), v. Donald E. Bender, Appellee (Plaintiff).
    Nos. 99-229, 99-232.
    Supreme Court of Wyoming.
    July 25, 2000.
    Rehearing Denied Aug. 22, 2000.

      Representing Donald E. Bender: Timothy C. Kingston of Graves, Miller & Kingston, P.C., Cheyenne, Wyoming.
    Representing James E. Phillips: Gary B. Ferguson, Evanston, Wyoming; Williams & Hunt, Salt Lake City, Utah.
    Representing John A. Thomas: Matthew L. Lalli and Daniel E. Garrison of Snell & Wilmer, LLP., Salt Lake City, Utah; V. Anthony Vehar of Evanston, Wyoming.
    Before LEHMAN, C.J., and THOMAS, MACY , GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   GOLDEN, Justice.

These consolidated appeals involve issues arising after Appellant Donald E. Bender (Bender) and his wife reconciled and dismissed their divorce action. Bender brought suit against the two attorneys who had represented them, Appellees James E. Phillips (Phillips) and John A. Thomas (Thomas). Summary judgment was granted to both Phillips and Thomas on Bender's claims, and Bender was ordered to pay sanctions to Thomas in the amount of $48,864.99. Phillips also sought sanctions against Bender, but the district court denied him that relief. Bender appeals the district court's order, contending that his claims of fraud and collusion were properly pleaded and supported by sufficient evidence to survive summary judgment. He further contends that the order of sanctions in Thomas' favor, granted under Wyo. Stat. Ann. § 1-14-128, must be reversed to comply with our recent decision finding the statute unconstitutional. In a separate appeal, Phillips contends that the district court's order denying his motion for sanctions should be reversed.

We affirm the district court's order granting summary judgment on Bender's claims, reverse the order for sanctions against Bender, and remand for further consideration in light of our decision in Squillace v. Kelley, 990 P.2d 497 (Wyo.1999). We also reverse the denial of Phillips' motion for sanctions and remand for further consideration.

ISSUES

In Case No. 99-229, Bender presents these issues for our review:

1. Did the District Court commit reversible error by failing to consider the Appellant's collusion claim against Ap-pellee Phillips?
Did the District Court commit reversible error when it found that the Appellant did not adequately plead his fraud claim against Appellee Phillips?
Should Appellee Phillips have been granted summary judgment on the Appellant's fraud claim on the sole basis that Phillips was not required to reveal his former partnership with Appellee Thomas?
Did the District Court commit reversible error when it found that all of the Appellant's claims against Appellee Thomas were legal malpractice claims?
Did the District Court commit reversible error when it found that the Appellant's claims accrued as of the date his attorney quit representing him?
Did the District Court abuse its disceretion in awarding attorney's fees and costs to Appeliee Thomas?

Phillips states that the issue for our review in Case No. 99-229 is solely whether summary judgment in favor of him on all of Bender's claims was properly granted.

Thomas phrases the issues in Case No. 99-229 as:

1. Did the District Court properly find that there were no disputed issues of material fact in this case and that Ap-pellee and Defendant Thomas was entitled to judgment as a matter of law on all of Appellant and Plaintiff Bender's claims?
Alternatively, are there legal grounds not relied upon by the trial court that would entitle Thomas to judgment on the undisputed facts and upon which this Court may affirm the trial court's grant of summary judgment?
3. Was the District Court within its discretion to award Thomas his fees and costs under Section 1-14-128 of the Wyoming Revised Statutes?

In Case No. 99-282, Phillips presents this issue for our review:

Whether the trial court erred in denying defendant Phillips' Motion for Sanctions for filing a baseless and frivolous Complaint given that the trial court thereafter granted codefendant Thomas' Motion for Sanctions on the same bases in the amount of $48,864.99.

Bender notes that there are two issues in Case No. 99-282 presented for our review:

1. Should the District Court's denial of sanctions be upheld because Wyo.Rev.Stat. § 1-14-128 is unconstitutional?
2. Did the District Court abuse its discretion when it denied the Appellant's motion for sanctions?

FACTS

Phillips represented Bender's wife in her divorce action against Bender, and Thomas represented Bender. The parties eventually reconciled and remain married today; however, while the action was pending, the parties primarily disputed the value of the couple's Evanston, Wyoming, home and the value of Bender's deceased mother's home in California. Phillips filed a motion for sanctions against Thomas, requested a hearing and, shortly thereafter, Thomas and Phillips negotiated a settlement offer to Bender. The hearing was canceled. The settlement offer was presented to Bender. He rejected the settlement offer and requested that Thomas present a counteroffer. Thomas refused to do so. Thomas withdrew as Bender's lawyer after that rejection, and the divorcee proceeding endured another eight acrimonious months as Bender represented himself for a period of time.

In February of 1996, Bender learned that Thomas and Phillips had been former partners. However, Bender claims that it was not until the summer of 1996, that he learned that the circumstances of Thomas' and Phillips' prior dissolution of their partnership allegedly caused Phillips to unduly influence Thomas in his representation of certain clients and gave rise to his claims against both.

Bender alleges that Thomas and Phillips "colluded" to force Bender to accept an unfavorable settlement that he rejected on its face. Bender claims damages from that alleged "collusion." On March 11, 1998, he filed his original pro se complaint against both lawyers, claiming that after Thomas ceased representation, Bender learned that as a former partner Phillips had the ability to control and malevolently influence Thomas; and that these two lawyers colluded in the settlement scheme to defraud Bender. Bender amended this complaint with additional facts supporting claims of negligence, breach of contract, legal malpractice, fraud, emotional distress, libel, and collusion under Wyo. Stat. Ann. § 88-5-114.

Phillips' motion to dismiss was treated by the district court as a motion for summary judgment, and a hearing was held. The district court granted the motion for summary judgment, ruling that Bender's negligence, breach of contract, and legal malpractice claims were unsustainable because Phillips had no attorney-client relationship with Bender. The district court determined that the fraud claim had not been plead with particularity as required under W.R.C.P. 9(b) and, in any event, Phillips had made no actionable misrepresentation to Bender; Phillips' alleged conduct did not rise to the level of atrocious, utterly intolerable behavior as required to sustain an infliction of emotional distress claim; the libel claim required a showing of a written document containing a defamatory statement, and none had been produced. There was no ruling specifically referencing the collusion claim or Wyo. Stat. Ann. § 88-5-114.

Phillips moved for sanctions against Bender under W.R.C.P. 11 and Wyo. Stat. Aun. § 1-14-128, seeking attorney's fees, costs, and expenses against Bender for bringing a frivolous and baseless complaint. The district court denied his motion. Bender continued to file motions seeking discovery in order to pursue further litigation against Phillips, and Phillips again filed a motion for sance-tions. That motion was granted in the amount of $500.00.

Thomas also moved for summary judgment, and the district court granted the motion on the grounds that all claims were legal malpractice claims that had not been filed within two years as required by Wyo. Stat. Ann. § 1-8-107(a)(@). Thomas then moved for sanctions against Bender under Wyo. Stat. Ann. § 1-14-128, and a hearing was held. The district court orally granted the motion at the hearing and subsequently entered a written order awarding attorney's fees, costs, and expenses to Thomas in the amount of $48,864.99.

These appeals followed.

DISCUSSION

This Court's standard of review of summary judgment is:

When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.

Lavoie v. Safecare Health Service, Inc., 840 P.2d 239, 241 (Wyo.1992) (quoting Roth v. First Sec. Bank of Rock Springs, 684 P.2d 93, 95 (Wyo.1984)).

This Court further maintains:

A summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. A material fact is one which has legal significance. It is a fact which would establish a defense. After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, or come forward with competent evidence of specific facts countering the facts presented by the mov-ant. The burden is then on the nonmoving party to show specific facts as opposed to general allegations. The material presented must be admissible evidence at trial. Conclusory statements are not admissible. We give the party defending the motion the benefit of any reasonable doubt. If the evidence is subject to conflicting interpretations or if reasonable minds might differ, summary judgment is improper.

Id. "In a summary judgment context, we will not disturb the trial court's judgment if it is sustainable on any theory." Id. (citing DeWald v. State, 719 P.2d 643, 650-51 (Wyo.1986)).

We apply an abuse of discretion standard in reviewing an award of sanctions. Meyer v. Mulligan, 889 P.2d 509, 517 (Wyo.1995). We recently defined discretion as:

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.

Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)).

Case No. 99-220-Fraud and Collusion.

Bender limits his challenge of the summary judgment to the district court's disposal of his fraud and collusion claims. He submits that the gravamen of his collusion claim was that Phillips and Thomas conspired to present Bender with a disadvantageous financial settlement in his divoree proceedings. Bender's complaint alleged that 1) on February 13, 1996, Phillips and Thomas, as undisclosed law partners, met secretly and willfully to develop a plan to force Bender into an economically disadvantageous settlement agreement; 2) on February 20, 1996, Thomas, acting on the basis of the secret plan with Phillips, presented the disadvantageous settlement agreement to Bender; 3) when Bender refused to accept the settlement agreement as proposed to him and insisted on a counteroffer Thomas threatened to withdraw; 4) Thomas did in fact withdraw two days later; 5) prior to the secret negotiations Phillips filed a frivolous sanctions motion against his former partner which further served to provide Phillips the leverage to induce Thomas to engage in the alleged collusive conduct; and 6) the defendants are therefore liable under the collusion statute, Wyo. Stat. Ann. § 38-5-114.

Bender contends that the district court's failure to address the collusion claim requires reversal as no other grounds support it and he submitted sufficient evidence to survive summary judgment. Phillips contends that "collusion" is not a recognized cause of action in Wyoming, but if considered, argues that there is no evidence in the record, by affidavit or otherwise, that there was ever any agreement between Phillips and Thomas for any purpose, including to defraud Bender.

Our review of the district court's decision letter indicates that it considered the fraud and collusion claims as one actionable claim. Whether this is proper need not be decided because our review does not indicate that Bender has submitted sufficient evidence that the two attorneys agreed to defraud him to survive summary judgment. He claims that he "showed the Court the reasons why his attorney might be unduly influenced by his adversary; he showed the cireumstances of their collusion; he showed how the collusion produced the disadvantageous settlement agreement; and he showed the effects of his rejection of the agreement on his attorney and on the progress of his divorcee case."

Bender's summary judgment materials showed that Phillips and Thomas had a previous partnership, Phillips filed a sanctions motion against Thomas that was withdrawn, the two attorneys negotiated a settlement agreement that Bender rejected, and Thomas withdrew his representation of Bender. Bender characterizes these facts as "collusion" that destroyed his reputation in the community; however, his characterization is a conclusive allegation unsupported by the specific facts required to survive summary judgment. Brooks v. Zebre, 792 P.2d 196, 202 (Wyo.1990). Bender could survive summary judgment if these facts logically and reasonably lead to the conclusion that an agreement must have existed. Under our applicable standard of review, we are required to view the record from the perspective most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts. This review, however, is limited by the substantive law that actions sounding in fraud, whatever the basis, must be plead with particularity and proved by clear and convincing evidence. See Sundown, Inc. v. Pearson Real Estate Co., 8 P.3d 324, 330-331, 332 (Wyo.2000); Snyder v. Lovercheck, 992 P.2d 1079, 1089 (Wyo.1999); Richey v. Patrick, 904 P.2d 798, 801-02 (Wyo.1995). An action for fraud is not sustainable on the basis of what you believe you know, but by what you can prove.

Accordingly, in order to survive summary judgment on his collusion claim, Bender was required to submit evidence of an agreement between Phillips and Thomas to defraud him or injure his reputation or evidence from which one could logically and reasonably infer from the established facts that an agreement existed. No such showing has been made, either directly or by inference, and we affirm the district court's order granting summary judgment to Phillips.

Next, Bender contends that the district court erred in applying the statute of limitations for legal malpractice claims to his fraud and collusion claims against Thomas. Again, we need not decide this precise issue because we affirm the district court's order granting summary judgment for the same reasons just advanced; Bender has failed to submit sufficient evidence of fraud or collusion.

Case No. 99-229-Order Granting Thomas' Sanctions Against Bender.

Thomas requested sanctions under Wyo. Stat. Ann. § 1-14-128, and the district court so ordered. In Squillace v. Kelley, 990 P.2d 497 (Wyo.1999), this Court declared the statute unconstitutional as an invasion of the constitutional powers of the judicial branch of government. Id. at 501. Squillace reversed an order for sanctions and remanded for further proceedings in accordance with the opinion. Id. - Bender contends that because the sanctions were issued in this case in reliance upon an unconstitutional statute, the order must be reversed. We reverse the order for sanctions and remand to the district court for further consideration in light of our decision in Squillace.

The district court's order granting summary judgment in Case No. 99-229 is affirmed in part, reversed in part, and remanded.

Case No. 99-282-Order denying Phillips' Sanctions Against Bender.

In its decision letter, the district court stated that it was denying Phillips' motion for sanctions because Bender's complaint was without merit, but not baseless, frivolous, or brought for an improper purpose. During the hearing to consider Thomas' motions for sanctions against Bender, the district court stated: ‘

I was willing to give you the benefit of the doubt, I guess, earlier when this case was presented with sanctions, but you have persisted, and I can only believe that you do have an improper purpose here. The facts are not with you, the law is not with you. It seems that you are on this crusade to simply harass and punish Mr. Phillips and - and Mr. Thomas as we're discussing here today, and it seems to me that for entirely improper purposes.

The district court then granted Thomas over $48,000 in attorney's fees, costs and expenses. Phillips contends that the two cases are indistinguishable and denying his motion for sanctions was arbitrary and capricious. He claims that the unconstitutionality of Wyo. Stat. Ann. § 1-14-128 is irrelevant because he also requested sanctions under W.R.C.P. 11. That rule, he contends, also permits sanctions for actions that are frivolous, oppressive, and without basis in law or fact.

We are persuaded that Bender's actions against Phillips and Thomas are indistinguishable, as apparently the district court also found, and it was, therefore, inconsistent to find the action baseless and submitted for an improper purpose for one attorney and reach the opposite conclusion for the other attorney. We find the district court abused its discretion because its inconsistency is arbitrary and capricious. We reverse the order denying Phillips' motion and remand for further consideration.

      . Wyo. Stat, Ann. § 33-5-114. Penalty for deceit or collusion.
      An attorney and counselor who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge, or a party to an action or proceeding, or brings suit or commences proceedings without authority therefore, is liable to be disbarred, and shall forfeit to the injured party treble damages, to be recovered in a civil action.

      . Bender advises us that "Black's Law Dictionary, Fifth Edition; defines 'collusion' as: 'An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means or of lawful means for the accomplishment of any unlawful purpose.' (citing Tomiyasu v. Golden, 81 Nev. 140, 400 P.2d 415, 417 (1965))." For purposes of this appeal, we accept his definition.


source: Caselaw Access Project

author: GRANT, District Judge.

license: Public Domain

text:
    BOARD OF COUNTY COMMISSIONERS OF TETON COUNTY, by and on Behalf of the TETON COUNTY SHERIFF'S DEPARTMENT, Appellants (Defendants), v. Rayce B. BASSETT and Patricia Bassett; and Michael Coziah and, Sonia Coziah, Appellees (Plaintiffs). State of Wyoming, by and on behalf of the Wyoming Highway Patrol, Appellant (Defendant), v. Rayce B. Bassett and Patricia Bassett; and Michael Coziah and, Sonia Coziah, Appellees (Plaintiffs).
    Nos. 98-342, 98-343.
    Supreme Court of Wyoming.
    July 25, 2000.

      Representing Board of County Commissioners of Teton County, by and on behalf of * Retired June 2, 2000.
    the Teton County Sheriffs Department: Paul K. Knight of Mullikin, Larson & Swift LLC, Jackson, Wyoming.
    Representing State, by and on behalf of the Wyoming Highway Patrol: Gay Wood-house, Attorney General; John W. Renneisen, Deputy Attorney General; Dennis M. Coll, Senfor Assistant Attorney General; and Francisco L. Romero, Assistant Attorney General, Cheyenne, Wyoming.
    Representing Appellees: David G. Lewis, Jackson, Wyoming.
    Before LEHMAN, C.J., and THOMAS, MACY *, and GOLDEN, JJ., and GRANT, D.J.
   GRANT, District Judge.

These appeals are from the judgment on a jury verdict against officers of the Wyoming Highway Patrol and the Teton County Sheriff s Department after trial of appellees' claim that the officers were at fault in the establishment and operation of a roadblock to stop a fleeing suspect on U.S. Highway 89 north of Jackson, on March 15, 1995. Appellees were driving toward Jackson when they encountered the roadblock and, at the direction of the officers, passed through it just ahead of the high-speed flight of the suspect, Steve Ortega (Ortega), whose car crashed into ap-pelleeg' vehicle just after it cleared the roadblock. Police had pursued Ortega, who was wanted in two jurisdictions and considered armed and dangerous, from Dubois where they first saw him.

These appeals present three issues: (1) whether the jury should have been instructed that police officers can be held liable to innocent bystanders who are injured when struck by the fleeing suspect, only if police conduct was extreme and outrageous; (2) whether the fleeing suspect who collided with appel-lees' car should have been included on the verdict form as an actor whose conduct would be compared by the jury in allocating fault pursuant to Wyo. Stat. Ann. § 1-1-109 (Lexis 1999), Wyoming's comparative fault statute; and (8) whether one of the officers was entitled to qualified immunity from suit.

The district court held the police to the standard of the ordinarily prudent police officer in similar cireumstances, refused to include Ortega among those whose fault was compared, and rejected the claim of qualified immunity. We will reverse and remand for trial with Ortega included on the verdict form as an actor whose conduct must be compared with that of the appellants in allocating fault, and with an appropriate instruction on proximate cause.

The Wyoming Highway Patrol pursued Ortega from Dubois at high speeds. Ortega repeatedly swerved from his own lane toward oncoming traffic, and otherwise presented a menace to the traveling public in an apparent attempt to cause a crash which would divert the pursuing officers or involve them in a crash. These efforts failed, but the officers were unable to stop Ortega making the roadblock necessary.

The Wyoming Highway Patrol requested that the roadblock be established at Moran Junction, but the Sheriff's deputies, who had been requested to assist, decided to establish the roadblock farther south, beyond the intersection of U.S. Highway 89 and Antelope Flats Road. At that location, they placed improvised road spikes in the hope that Ortega would turn off of the highway onto the road and be stopped when the spikes disabled his vehicle. Ortega did not turn off of the highway, and continued on until he was stopped by the crash just on the Jackson side of the roadblock.

As these events were unfolding, appellees, Michael Coziah (Coziah) and Rayce Bassett (Bassett), were enroute home from fishing at Coulter Bay. As they approached Moran Junction, where they would turn south toward Jackson, they passed several officers who were at the right of the road. These were Sergeant Wilson of the Wyoming Highway Patrol and park police whom he was briefing. None of these officers made any effort to warn appellees of the hazardous situation developing on U.S. Highway 89 onto which appellees' vehicle turned.

As appellees approached the roadblock, surprised officers began frantically gesturing for them to go through as a deputy sheriff moved his car for their passage. Ortega, approaching at 100 miles per hour or more, went through the same opening, smashing into Coziah's car which was going approximately thirty miles per hour. Coziah and Bassett were injured, and Ortega was arrested.

Appellees sued the Wyoming Highway Patrol and Sheriffs officers alleging that they were negligent in pursuing Ortega, failing to warn appellees of the danger, and in operating the roadblock. At the close of the evidence, appellants sought instruction to the jury that the officers could be liable only if their conduct was extreme and outrageous, citing DeWald v. State, 719 P.2d 643 (Wyo.1986). They also objected to the absence of Ortega from the verdict form as a non-party actor whose fault must be compared with that of appellants The State moved for judgment for Sergeant Wilson on the basis of qualified immunity.

In rulings which are the basis of these appeals, the district court refused appellants' motion for judgment as to all but two of the named officers, ruled that DeWald did not apply in the circumstances shown by the evidence, rejected the claim of qualified immunity, and refused to include Ortega as an "actor" on the grounds that his conduct was willful and wanton, citing Danculovich v. Brown, 593 P.2d 187 (Wyo.1979). The verdict form included as those whose fault should be compared Coziah, who was driving appellees' car, the Wyoming Highway Patrol, the Sheriff's officers, and as a non-party, the National Park Service. The jury allocated 0% fault to Cozigah, 40% fault to the Wyoming Highway Patrol, 20% fault to the Sheriff's officers, and 40% fault to the National Park Service.

Alleged errors in instructions and form of verdict are reviewed to determine if the instructions present an accurate statement of the governing law. Betts v. Crawford, 965 P.2d 680, 686 (Wyo.1998) (quoting State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813, 832 (Wyo.1994)). We review denial of the motion for judgment as a matter of law taking as true all of the non-moving party's evidence with its reasonable inferences, affording no deference to the district court's determination, to inquire whether a reasonable jury could reach but one verdict. Anderson v. Duncan, 968 P.2d 440, 442 (Wy0.1998).

- Since it is dispositive, we turn first to the question of whether Ortega, whose conduct was willful and wanton or intentional, should have been included among the actors whose fault would be determined and compared with that of the other actors by the jury in apportioning fault among the actors as required by Wyo. Stat. Ann. § 1-1-109. Appellees contend, and the district court held, that Ortega's willful and wanton or intentional conduct could not be compared with the conduct of appellants, citing Daneu-lovich for the proposition that the conduct of willfully and wantonly negligent, or by necessary implication, intentional tortfeasor (willful actor") cannot be compared under Wyo. Stat. Ann. § 1-1-109 with that of a merely negligent ("negligent") actor because the two varieties of conduct, willful and negligent, differ not merely in degree but in kind and therefore cannot be compared. We disagree for several reasons.

Unlike the version before the 1994 amendment to Wyo. Stat. Ann. 1-1-109, which used "negligence," its present iteration introduces the more inclusive term "fault" and defines it as including conduct that is "in any measure negligent" eliminating degrees or varieties of negligence consistent with one of the purposes of the statute, that is to ameliorate the harshness of the doctrine of contributory negligencé. - The comparative negligence statute remedied the injustice of the doctrine of contributory negligence by stating that a plaintiff's negligence prevents recovery only in proportion as it causes plaintiff's damages.

The use of the word "includes" is significant because "includes" generally signifies an intent to enlarge a statute's application, rather than limit it, and it implies the conclusion that there are other items includa-ble, though not specifically enumerated. Federal Land Bank of St. Paul v. Bismarck Lumber Co., 814 U.S. 95, 100, 62 S.Ct. 1, 4, 86 L.Ed. 65 (1941); Paramount Gen. Hosp. Co. v. National Medical Enterprises, Inc., 42 Cal.App.3d 496, 117 CalRptr, 42, 47 (1974); Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1154 (Colo.App.1998); Schwab v. Artyoshi, 58 Haw. 25, 564 P.2d 185, 141 (1977); Janssen v. Janssen, 381 NW .2d 452, 755-56 (Minn.1983); Zorba Contractors, Inc. v. Housing Authority of City of Newark, 282 N.J.Super. 480, 660 AZ2d 550, 551 (1995); Matter of Estate of Corwin, 106 NM. 316, 742 P.2d 528, 529 (1987), North Carolina Turnpike Authority v. Pine Island, Inc., 265 N.C. 109, 1483 §.E.2d 319, 827 (1965); Lucke v. Lucke, 300 NW.2d 281, 284 (N.D.1980); Bradshaw v. Joseph, 164 Vt. 154, 666 A.2d 1175, 1176 (1995).

Appellees insist this is not so because the words "reckless," "wanton," "culpable" or "intentional" were stricken from the definition of "fault" in Senate File No. 35 evine-ing clear intent that they were not included in the definition of "fault" as conduct "in any measure negligent." This argument reads more into the deletion than we think justified. It leaves unexplained the legislature's expansion of "negligence" to "fault" which includes conduct "in any measure negligent." It may be as reasonable to attribute the deletions to a belief that the deleted words are subsumed in the phrase "in any measure negligent" as it would be to attribute them to other motives.

As the language of the statute clearly is broad enough to encompass willful and wanton conduct, we must determine whether the legislature intended such inclusion. We begin with the proposition that when the legislature amends a statute, some change in the existing state of the law was intended and that the court should endeavor to make such amendment effective. Brown v. State, 590 P.2d 1812, 1314 (Wyo.1979); DeHerrera v. Herrera, 565 P2d 479, 483 (Wyo.1977). Obviously, the amendment to the statute changed the law to compare strict and products liability with negligent conduct, but the changes go beyond that. Defining "fault" as broader than the conduct explicitly stated evidences an intention to compare all species of culpable conduct. We have a duty to effectuate this intent, and therefore, hold that willful conduct must be compared with negligence under Wyo. Stat. Ann. § 1-1-109.

Application of Wyo. Stat. Ann. $ 1-1-109 in this case to include Ortega as an actor is also consistent with the other purpose of the statute, the elimination of joint and several liability. Subsection (e) provides that "[elach defendant is liable only to the extent of that defendant's proportion of the total fault * * *2* To leave an actor such as Ortega out of the apportionment calculation exposes the remaining appellants to the possibility that they will be held to answer for his misconduct. Such a result does act as an incentive to those with a duty to protect against intentional harm, and "[a] number of courts therefore have concluded that persons who negligently fail to protect against the specific risk of an intentional tort should bear the risk that the intentional tortfeasor is insolvent." - Restatement (Third) of Torts § 24 emt. b at 164 (Proposed Final Draft (Revised) 3/22/99). The statutory elimination of joint and several liability, however, forecloses our consideration of the merits of such a policy. The legislature has clearly opted to relieve joint tortfeasors of liability beyond that for which they bear proportional fault rather than shift the burden of insolvency of one joint tortfeasor to the others for the protection of potential plaintiffs.

Contrary to appellees' argument, our application of Wyo. Stat. Ann. § 1-1-109 is not precluded by Danculovick - Brown, while driving under the influence of alcohol and exceeding the speed limit, failed to negotiate a curve causing a rollover crash in which Danculovich was killed. Danculovich 598 P.2d at 190. The trial court ruled that the record would not support a finding by the jury of willful and wanton misconduct for punitive damages and removed the issue from the jury's consideration. Id. at 192. On appeal, we held that there was sufficient evidence for the jury to have found willfal and wanton misconduct for punitive damages and so reversed and remanded. Id. at 194.

In dicta, we added that Danculovich's ordinary negligence, if any, could not be compared with Brown's willful and wanton conduct-if such the jury found-because, we said, the trial court may have ruled as it did out of fear that the jury would be confused by comparing negligence, gross negligence (as then required by the so-called "guest statute," since invalidated, Nehring v. Russell, 582 P.2d 67 (Wyo.1978)), and willful and wanton conduct. Danculovich 598 P.2d at 194-96. Justices Rose and McClintock, specially concurred, warning that the issue on . which our dicta pronounced was not raised below or addressed by the trial court, was not raised or briefed by the parties in this court, was not warranted by the record, and the dictum was unnecessary and unwise. Danculovich, 598 P.2d at 196-99. Whether or not our decision today vindicates the views of Justices Rose and McClintock, there are substantial elements distinguishing Danculo-vich from the case we now consider. At the time the case was decided, Wyo. Stat. Ann. § 1-1-1109 used only the phrase "negligence" not "fault" which includes conduct "in any measure negligent." The "guest statute," which required a plaintiff to prove "gross negligence" was in effect; subsection (e) limiting a defendant's lability to his apportionment of negligence was not present; and importantly, the comparison was of the conduct of only the plaintiff and the defendant driver-not the conduct of another "actor."

Appellants reiterate their contention that DeWaid justifies their insistence at the instruction conference that an instruction should have been given to the jury that the actions of the police officers could result in liability only if the jury found "extreme or outrageous conduct" on the part of the officers. Appellants insist here that DeWald established a duty or standard of care for police officers different from that to which others are held; that is, not a duty to act as ordinarily prudent police officers would act in like circumstances to avoid undue risk of harm to citizens, but only to avoid undue risk of harm by conduct that is extreme and outrageous. Appellants misapprehend the significance of DeWald, because DeWald advanced no such separate or different duty or standard of care. In that case, we held that the facts precluded a finding of causation of the plaintiffs damages by the officer's conduct.

DeWald was killed when, as he waited for a traffic light to change at an intersection near downtown Laramie, Maddox crashed into DeWald's car with his vehicle. Highway Patrol officers had endeavored to stop Maddox just outside of Laramie for driving while intoxicated. Maddox did not stop when signaled to do so by the patrolmen, and they pursued him, but dropped back when the speed of the chase reached fifty-five miles per hour. DeWald, 719 P.2d at 645. In the wrongful death claim against the State of Wyoming, the district court granted the State's motion for summary judgment on the basis of common law qualified immunity, which we recognized in Kimbley v. City of Green River, 663 P.2d 871, 883 (Wyo.1988). DeWald, 719 P.2d at 646. This Court held that the implied immunity defense did not apply to operational functions of the patrolmen, which do not qualify as the basic, discretionary, policy-making type of functions that the defense of qualified immunity protects. DeWald, 719 P.2d at 649.

We affirmed the summary judgment, but not because we applied a standard of care other than the one set forth in Keehn v. Town of Torrington, 834 P.2d 112, 114 (Wyo.1992). Instead, we said:

The liability of a police officer for pursuing a law violator who becomes involved in an accident causing damage to a third person has not before been considered by this court. A review of the decided cases exhibits a considerable reluctance to find the officers liable where they are not involved in the accident.
The policy reasons stated are that the officer has a duty to apprehend, arrest and remove from the highways drunk drivers; that if, in the performance of his job as a patrolman, he must choose whether to pursue or allow a lawhreaker to escape, he should not be liable for either choice in the absence of gross or wanton conduct almost amounting to bad faith; that he should be responsible only for the careful operation of his own car; and that he should not be liable for the unpredictable actions of the driver being pursued for that would make him an insurer of the wrongful acts of a lawhreaker. All of the above seem to essentially say that, except in extreme or outrageous cireumstances, an officer's pursuit of a vehicle which is involved in an accident not involving the officer's vehicle is not the proximate cause of that accident.
* * *
We agree with these courts and hold that when a police officer pursues a fleeing violator and the violator injures a third party as a result of the chase, the officer's pursuit is not the proximate cause of those injuries unless the cireumstances indicate extreme or outrageous conduct by the officer. To put it another way, the possibility that the violator will injure a third party is too remote to create liability until the conduct of the officer becomes extreme.

DeWald, 719 P.2d at 649-50.

The nature of the duty applied in DeWald is the same as the duty articulated in Keehn, 834 P.2d at 114, in which DeWald is cited. The causation feature of DeWald was emphasized in a later case:

"Proximate cause means that the accident or injury must be the natural and probable consequence of the act of negligence. The law does not charge a person with all the consequences of a wrongful act, but ignores remote causes and looks only to the proximate cause." DeWald v. State, Wyo., 719 P.2d 643, 651 (1986) (citation omitted).

Harmon v. Town of Afton, 745 P.2d 889, 891 (Wyo.1987).

Even so, the appellants were entitled to have the district court give the offered instruction. We have identified the elements of a cause of action or claim for negligence as:

[The defendant owed a duty to the plaintiff; the defendant breached that duty; the defendant's breach proximately caused the plaintiffs injuries; and the plaintiff was injured. Anderson v. Duncan, 968 P.2d 440, 442 (Wyo.1998) (citing Tureq v. Shanahan, 950 P.2d 47, 51 (Wyo.1997); Daily v. Bone, 906 P.2d 1089, 1048 (Wyo.1995)). To prevail, the plaintiff must prove all four elements of the negligence claim. Bird v. Rozier, 948 P.2d 888, 892 (Wyo.1997).

Kirby v. NMC/Continue Care, 993 P.2d 951, 954 (Wyo.1999). In Keehn, 834 P.2d at 115, we said:

The elements that a plaintiff must establish to maintain a negligence action in a court of law are: (1) that the defendant owed to the plaintiff a duty to conform to a specified standard of care; (2) that the defendant breached the duty of care; (8) that the defendant's breach of the duty of care proximately caused injury to the plaintiff; and (4) that the injury sustained by the plaintiff is compensable by money damages. See, MacKrell v. Bell H2S Safety, 795 P.2d 776, 779 (Wyo.1990); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30 (5th ed.1984). Elements (1) and (2), duty and breach of duty, address whether the conduct of the alleged tortfeasor was in fact negligent. Element (8), proximate cause, is considered only after negligence is first established to determine whether the tortfeasor should be legally responsible for his negligence. Finally, element (4), injury/damages, is considered to determine the extent of the tortfeasor's liability to the plaintiff if the foregoing issues are resolved affirmatively.

It is clear, upon careful analysis, that Keehn is concerned with the duty elements of the claim while the aspect of DeWald that the appellants rely upon as stating the duty really addresses the element of causation. Kirkwood v. Kelly, 794 P.2d 891, 894 (Wyo.1990). That distinction was established many years ago in York v. North Central Gas Co., 69 Wyo. 98, 115, 237 P.2d 845, 850 (1951) (emphasis in original):

The elements of a cause of action for negligence are set out in Restatement of Torts, § 281, and Prosser on Torts, p. 177. In this case, we refer to only two of these elements which we distinguish by calling one the negligence question, the other the causation question. See Martin v. Herzog, 228 N.Y. 164, 170, 126 N.E. 814, 816. To establish actionable negligence plaintiffs had the burden of proving not only that the break in the line was due to defendant's lack of care (the negligence question), but also that the escaping gas was the gas that exploded in the building (the causation question).

Both DeWaild and Keehn must be accounted for in the instructions to the jury in a case like this It is essential that the concepts of DeWald and Keehn remain distinct rather than merged. One deals with proximate cause; the other deals with duty. Both are elements of the cause of action for negligence, and, under cireumstances such as these, those elements must be correctly explained to the jury. The product of our analysis is that the district court should have instructed the jury to follow the causation standard announced in DeWald in determining the liability of the police officers and their respective employers in this instance.

The activities of the law enforcement officers in this case, although different in detail, cannot be distinguished from "an officer's pursuit of a vehicle which is involved in an accident not involving the officer's vehicle." DeWald, 719 P.2d at 649. The officers here were engaged in an effort to stop a violator of the law. If one of them had been in front of Ortega, instead of following him, as was the case in DeWald, surely the rule of causation announced in DeWald would be applicable. If the lead officer were far enough ahead of the fleeing violator to endeavor to structure a roadblock to stop that person, logic demands that the same standard be applied. It was reversible error to fail to instruct on the causation rule announced in DeWald.

A closely related issue is raised by the State's contention that Sergeant Wilson should have been granted judgment as a matter of law on the basis of qualified immunity. We do not agree because our prior cases, including DeWald, are to the contrary. The Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-89-101 through 1-39-121 (Lexis 1999), retains sovereign immunity except as specifically provided by statute. Hurst v. State, 698 P.2d 1130, 1132 (Wyo.1985). The relevant statutory exception here is Wyo. Stat. Ann. § 1-89-112, which provides:

A governmental entity is liable for damages resulting from tortious conduct of peace officers while acting within the seope of their duties.

Despite this exception, we have stated that

"a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the cireumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the cireumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct. * * *"

Blake v. Rupe, 651 P.2d 1096, 1109 (Wyo.1982), cert. denied, 459 U.S. 1208, 103 S.Ct. 1199, 75 L.Ed.2d 442 (1983) (quoting Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), cert. denied, 435 U.S. 924, 98 S.Ct. 1488, 55 L.Ed.2d 517 (1978)).

Determination of a peace officer's entitlement to qualified immunity under state law is governed by consideration of four factors: (1) the officer was acting within the scope of his or her duties; (2) the officer was acting in good faith; (8) the officer's acts were reasonable under the circumstances; and (4) the officer's acts were discretionary duties and not merely operational or ministerial duties Kanzler v. Renner, 987 P.2d 1337, 1344 (Wyo.1997); Darrar v. Bourke, 910 P.2d 572, 575-76 (Wyo.1996). The parties do not dispute that Sergeant Wilson was acting within the scope of his duties and in good faith, but they cannot agree on the reasonableness of Sergeant Wilson's actions, or inaction, and whether that action or inaction was discretionary. We find no discretionary activity here, and therefore, need not consider the reasonableness of Sergeant Wilson's conduct.

Qualified immunity is available only for discretionary functions, DeWald, 719 P.2d at 649, and it is the character of an official's act, rather than the character of his office, which determines whether any particular act is discretionary. Oyler v. State, 618 P.2d 1042, 1048 (Wyo.1980). The term "discretionary" in the context of a qualified immunity question is a misnomer. It has long been understood to be limited to executive policy functions. Id. Other jurisdictions, dealing with equivalent doctrines, have determined that discretionary duties are strictly limited to acts within the special competence of the executive branch. The Washington Supreme Court has said that "[slince the concept of discretionary governmental immunity is a court-created exception to the general rule of governmental tort lability, its applicability is necessarily limited only to those high level discretionary acts exercised at a truly executive level." Bender v. City of Seattle, 99 Wash.2d 582, 664 P.2d 492, 497 (1983). Colorado courts have established a similarly narrow definition of discretionary acts. "In this limited sense, discretionary acts are those which are of a judgmental, planning, or policy nature." Cooper v. Hollis, 42 Colo.App. 505, 600 P.2d 109, 111 (1979).

Viewed in light of these limitations, none of the decisions made by Sergeant Wilson were of an executive, policy nature. Sergeant Wilson participated in deciding where to establish the roadblock, and neglected to warn Bassett and Coziah that a dangerous high-speed pursuit was approaching. While these decisions involve the exercise of discretion, they do not involve planning or policy formation, and thus, are operational decisions. As was aptly noted by the Washington Supreme Court: " 'If this type of [operational] conduct were immune from liability, the exception would surely engulf the rule, if not totally destroy it.'" DeWald, 719 P.2d at 648 (quoting Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1860, 1365 (1975)). Thus, the district court's denial of the State's motion for judgment as a matter of law was proper.

The exclusion of Ortega from the verdict form frustrates the legislature's expressed intent, and the defendants were entitled to have the causation rule of DeWald given as an instruction to the jury. We reverse and remand for a new trial

      . Senate File No. 35 was the bill introduced in the 1994 session of the Wyoming State Legislature that ultimately was adopted as Wyo. Sess. Laws ch. 98, § 1 (1994) to amend Wyo. Stat. Ann. § 1-1-109.

      . We note that other jurisdictions that have considered whether willful and wanton misconduct can be compared to mere negligence have reached different conclusions. See Annotation, Application of Comparative Negligence in Action Based on Gross Negligence, Recklessness, or the Like, 10 A.L.R.Ath 946, 948-52 (1981); Allan L. Schwartz, Annotation, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525, 533-40 (1994); Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill.2d 429, 170 Ill. 633, 593 N.E.2d 522, 528-32 (1992); and Martel v. Montana Power Co., 231 Mont. 96, 752 P.2d 140, 143 (1988). As our legislature has plainly directed such comparisons, we need not consider the various arguments on either side of the issue.


author: MATTHEWS, Chief Justice.

text:
    James and Jane WEST, Appellants, v. UMIALIK INSURANCE COMPANY, Appellee.
    No. S-9070.
    Supreme Court of Alaska.
    Sept. 29, 2000.

      Thomas R. Manniello, Borgeson & Burns, PC, Fairbanks, for Appellants.
    Michael A. Budzinski, Alex KM. Vasaus-kas, Stone, Jenicek & Budzinski, Anchorage, for Appellee.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

This case involves coverage under a homeowners insurance policy for damage caused by the settling of a house when soil under the foundation was washed away by water from broken plumbing. The superior court entered summary judgment in favor of the insurer, applying policy exclusions for loss caused by settling, earth movement, and water damage. Because the listed exclusions only apply to external or natural phenomena such that the damage does not fall within the exclusions, we reverse and direct the superi- or court to enter summary judgment in favo of the homeowners. :

IL FACTS AND PROCEEDINGS

This case concerns a dispute whether damage to the Fairbanks house owned by James and Jane West is covered under the their homeowners insurance policy. The facts are uncontested and set out in the parties' Stipulation of Facts. The Wests' house was insured under a homeowners insurance policy issued by Umialik Insurance Company. The water source for the house is a well. The pump for the well is located next to the house in an insulated chamber buried four or five feet below ground. The chamber is connected to the house's basement by a water pipe which runs through an insulated causeway. Ordinarily, heat from the basement also heats the causeway and prevents the system from freezing.

In late 1995 or early 1996 the temperature in the basement dropped below freezing, causing the pipe to break at the well pump and allowing water to gush out of the pump into the ground. The water infused the ground beneath the house's foundations. The Wests repaired the pipe. At the time, the house did not appear damaged.

But the northeast corner of the house later settled about three feet as a result of the leak. The parties agree that "[the water from the frozen broken water line had seeped under the house and undermined the dwelling's foundation, causing the settling of the house." Although the house was not breaking apart or collapsing, the house was racking, i.e., twisting, which caused sheetrock cracks, gaps in the ceiling and floor, uneven flooring, and doors that were out of plumb. In order to correct the problem, "a new basement foundation system would have to be built and the upper structure moved onto it" or "a two-story house above ground could be built on a different type of foundation to provide equivalent living space."

The relevant provisions of the Wests' homeowners insurance policy are set forth in the margin. The policy is an "all risks" policy. In contrast to a "specific designation of risks" policy, which provides coverage only for enumerated perils, an "all risks" policy provides coverage for all perils not specifically excluded by the policy language.

The Wests reported this loss to Umialik, which denied coverage. In denying coverage, Umialik relied on the exclusion for settling contained in paragraph 2.e(6) of the Perils Insured Against clause. Umialik also relied on paragraphs 1(b) and (c) of the Exclusions clause, which exclude earth movement and water damage "regardless of any other cauge or event contributing concurrently or in any sequence to the loss."

The policy also specifically excludes coverage for freezing or the discharge from plumbing which has burst because of freezing. But because this exclusion does not apply when the home is occupied, the parties agree that this exclusion does not apply.

On December 5, 1997, the Wests filed this action in superior court, seeking damages and a declaration that the damage was covered under the policy. The parties stipulated as to the facts and filed cross-motions for summary judgment. The court concluded that Umialik had properly denied the claim and entered summary judgment in favor of Umialik. The Wests appeal.

III. STANDARD OF REVIEW

This court reviews an order of summary judgment de novo. Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... any party is entitled to judgment as a matter of law." Normally, we will construe all facts in favor of the non-moving party. Here, the parties agree on the material facts, and each seeks judgment as a matter of law. Therefore, we need only determine which party is entitled to judgment as a matter of law. In reviewing questions of law, this court exercises its independent judgment and adopts the rule of law that is most persuasive in light of precedent, reason, and policy.

IV. DISCUSSION

Umialik denied the Wests coverage under exclusions for settling, earth movement, and water damage. The Wests contend that they reasonably expected the policy to cover this loss.

A. The Doctrine of Reasonable Expectations

Alaska has adopted the doctrine of reasonable expectations. We have held that "[the obligations of insurers are generally determined by the terms of their policies." But because insurance policies are contracts of adhesion, they are construed according to the principle of "reasonable expectations." Under the reasonable expectations doctrine, "Itlhe objectively reasonable expectations of applicants ... regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations."

It is a settled principle that ambiguities in an insurance policy are construed in favor of the insured. The court need not find the policy ambiguous, however, to construe it under the. reasonable expectations doctrine. To determine the parties' reasonable expectations, the court examines (1) the language of the disputed policy provisions; (2) the language of other provisions in the same policy; (3) extrinsic evidence; and (4) case law interpreting similar provisions.

B. The Exclusion for Settling Does Not Apply.

Umialik denied coverage to the Wests under the exclusion for loss caused by settling. The Wests argue that a reasonable person could understand "settling" to refer exclusively to settling caused by natural phenomena. - Umialik contends the term plainly excludes a sinking of the land by any means. The term is not defined in the policy. We agree with the Wests that the settling exclusion does not preclude coverage for their loss.

1. The language of the disputed policy provision

The reasonable expectations doctrine directs the court to look first at the language of the disputed policy provision. The policy does not insure "for loss ... [cJaused by ... [slettling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings." The parties agree that, descriptively speaking, the house "settled." As both the superior court and Umialik note, the Stipulation of Facts provides that, because of the water, "the home had settled about three feet." However, this is not dispositive. That the Wests describe the loss in terms of "settling" does not mean that settling was the cause of the damage.

2. Other policy provisions

To determine the insureds' reasonable expectations, we also look to other provisions of the policy. Paragraph 2.e of the Umialik policy lists eight separate exclusions including the settling exelusion and an exclusion for "wear and tear, marring, deterioration." In Winters v. Charter Oak Fire Insurance Co., the court ruled that "settling" is akin to normal wear and tear where the policy lists "settling" under a general heading of "wear and tear." Umialik distinguishes the case, arguing that the present policy is different because it separates "wear and tear" (paragraph 2.e(1)) from "settling" (paragraph 2.e(6)). This distinction is unpersuasive. The policy groups both "wear and tear," "settling," and six other clauses into paragraph 2.6, indicating that the eight clauses are somehow related, while paragraphs 2.2 though 2.d list four unrelated provisions for denying coverage.

Indeed, Winters supports the view that grouping these clauses together leads a reasonable insured to infer a relationship. Winters cites with approval Holy Angels Academy v. Hartford Insurance Group for the proposition that

it is not unreasonable for an ordinary individual ... to conclude that the policy language "settling, cracking" contained in a paragraph beginning, "Loss caused by: wear and tear ..." was limited in meaning to the gradual sinking of a building from the yielding of the ground under its foundation or by the natural constriction and expansion of its construction materials.

In Holy Angels Academy, the Hartford policy was almost identical to the Umialik policy. Like the Umialik policy, the Hartford policy grouped a number of seemingly related exclusions, separated by semicolons, into one paragraph. All the policy exclusions in this paragraph entail natural or environmental concerns. The Umialik policy only differs in that each semicoloned exclusion is preceded by a number (one through eight). Therefore, as in Holy Angels Academy, it would be reasonable for the Wests to understand settling, when included in a paragraph that, begins with "wear and tear," as "the gradual sinking of a building from the yielding of the ground under its foundation or by the natural constriction and expansion of its construction materials."

One additional policy provision is relevant to the Wests' claim. Under paragraph 2.2, the policy excludes coverage for loss caused by plumbing which has frozen and burst if the home is unoccupied (subject to exceptions not relevant here). The parties agree that this exclusion does not apply because the home was occupied. But in light of this exclusion, damage caused by burst pipes because of freezing is more than just one of numerous perils covered under the all-risks policy. - Rather, a reasonable individual would understand that losses so caused are covered except where the house is not occupied. In other words, regardless of the settling exclusion, the policy implies coverage for the damage caused by water discharged from pipes which are ruptured by freezing.

3. Extrinsic evidence

The parties do not point to any extrinsic evidence, such as representations made to the homeowners. Therefore, we disregard this element of the reasonable expectations test.

4. Case law examining similar provisions

Finally, we look to case law examining similar provisions. Although this court has not had occasion to interpret the word "settling," various other jurisdictions have explained its meaning. Souza v. Corvick and Winters v. Charter Oak Fire Insurance Co. are the most persuasive in this regard.

Souza stands for the proposition that settling involves the condition of the ground. After the insured presented evidence that her house had settled due to explosions, the trial court in Souza granted the insurer a directed verdict, based on the policsr exclusion for settling. The appellate court reversed, finding that " 'settling' should be interpreted to mean the gradual subsidence of a structure resulting from the condition of the ground. The court concluded, "since it certainly can be inferred that the subsidence involved here resulted from something other than the condition of the ground, we cannot say as a matter of law that the damage to [the insured's property] was excluded from the coverage of her policy."

The facts of Winters are even more akin to the case at hand. In Winters, the parties stipulated that "a water line broke in plaintiffs' clubhouse which caused soaking and subsequent shifting of the soil beneath the building, leading to structural damage." The court denied the insurer's motion for summary judgment based on an exclusion for "settling," holding that the term "has generally been taken to mean a gradual, natural process that every building endures. When the settling occurs from an accidental cause and happens abruptly and unexpectedly, that is not the sort of 'settling' to which the policy language refers."

Other authorities that have addressed the issue concur. One commentator defines "settling" or "subsidence" in a policy exclusion to occur "when the soil compacts downward vertically over time. The Ninth Circuit, applying California law, has characterized the conclusion slightly differently, focusing on the unanticipated versus the inevitable:

[{Aln all physical loss home policy excluding coverage for damage sustained as a result of 'settling,' would not cover damage sustained due to a house settling into the soil thereunder unless the immediate cause of the settling is an unanticipated event or casualty rather than an inevitable occurrence.[]

Similarly, in Hartford Accident & Indenmity Co. v. Phelps, the home suffered damage from a leaking underground pipe. When the water was "pumped from beneath the house in repairing it, the house settled causing additional damage." The Florida District Court of Appeal was of the "view that the exception as to settling, cracking, etc., is not applicable to the factual situation in this case." Elsewhere, a New York trial court, contrasting settling with collapse, held that, "als applied to houses, settling has a ... connotation ... of a building initially coming to rest after construction." All of these definitions indicate that "settling" does not preclude coverage where water from a frozen pipe seeps under the house.

For its broad interpretation of the term "settling," Umialik relies on this court's interpretation of the term "earth movement" in State Farm Fire & Casualty Co. v. Bongen, which rejected the "man-made" versus "natural" dichotomy. - Bongen, however, , has no applicability to the settling language in the present policy. In Bongen, the earth movement exclusion was preceded by a lead-in clause precluding coverage for earth movement loss "regardless of the cause." Furthermore, the lead-in clause specifically excluded earth movement caused by both "natural" and "external" forces. Indeed, Bongen acknowledges that, "[ulntil insurance companies added the lead-in clause, courts often limited the earth movement exclusion to natural disasters." Therefore, since the settling exclusion in the Umialik policy is not preceded by a similar lead-in clause, Bongen does not support Umialik's position.

C. The Exclusions for Earth Movement and Water Damage Do Not Apply.

Umialik also denied coverage on the basis of the exclusions for earth movement and water damage. Again, the Wests contend that, under the doctrine of reasonable expectations, a reasonable insured could understand these provisions to exclude only loss caused by natural phenomena. The superior court rejected the distinction between natural and man-made phenomenon and applied the exclusions to preclude coverage. For the reasons described below, we hold that they do not apply.

1. The language of the disputed policy provision

The Wests contend that the policy language limits both exclusions to natural occurrences. Pursuant to the doctrine of ejusdem generis, a general term, when followed by specific terms, will be interpreted in light of the characteristics of the specific terms, absent clear indication to the contrary. The Wests argue that the doctrine applies to both "earth movement" and "water damage." Both of these general terms are defined by specific terms that are naturally occurring in character. It follows, they argue, that both general terms should be limited to similar natural occurrences.

Umialik responds that the specific terms following earth movement include man-made occurrences. The exclusion specifically refers to earthquake, landslide, mine subsidence, mudflow, and earth sinking, rising or shifting. - Umialik argues that mudflows, landslides, and mudslides can be man-made, citing Bongen as an example. Umialik also adds that mine subsidence "further communicates that human processes or 'extrinsic causes of earth movement were contemplated to be within the exclusion" since "[mJines are man made, and ... the subsidence of earth over them therefore arises from human action."

Umialik's argument shows that the Wests have too narrowly characterized the qualities of the specific defining terms as "natural" occurrences. Instead, the terms might better be described as referring to natural or external occurrences. As in Bongen, mudslides can be natural or man-made, but they are caused by forces external to the insured property. Similarly, like other forms of earth movement and settling, landslides and mine subsidence result from conditions external to and apart from the insured's home. Exclusions for those events do not suggest that, where a leaking pipe on the premises washes away soil, the resulting damage will be excluded.

With respect to water damage, Umi-alik contends that egusdem generis should not apply to the phrase "water below the surface of the ground" because the specific terms are preceded by the word "including" which, unlike the word "meaning," is expansive, not limiting. This argument is not convincing. A general term linked to specific terms with the word "including" may be interpreted under the gjusdem generis principle.

The water damage exclusion describes water exerting pressure, seeping through, or leaking through the building, sidewalk, driveway, foundation, swimming pool, or other structure. An individual could reasonably interpret this as water from a natural or external source seeping through the structure. The language does not describe the damage incurred by the Wests.

2. Other policy provisions

As discussed above, the policy provision excluding coverage for freezing pipes when the home is unoccupied sheds light on the Wests' reasonable expectations.

Several other provisions are also relevant. First, under the Perils Insured Against caption, paragraph 2, after listing several exclusions, provides, "If any of these [excluded forces] cause water damage not otherwise excluded ... we cover loss caused by the water...." (Emphasis added.) Although Umialik correctly points out that the language is an "exception to an exception" that "does not even come into play unless an exception initially applies," the provision is nonetheless revealing: by providing for "water damage not otherwise excluded," the policy necessarily connotes that some water damage is covered.

Also of relevance are other provisions excluding water damage. In addition to precluding coverage for "water below the surface of the ground," the water damage provision encompasses

(1) Flood, surface water, waves, tidal water overflow of a body of water, or spray from any of these, whether or not driven by wind;
(2) Water which backs up through sewers or drains or which overflows from a sump....

Both of these definitions also involve perils unlike damage from burst pipes of a home water system, for they ordinarily entail water from external sources. The contrast would reasonably tend to lead the Wests to believe that their loss would be covered.

Although the parties discuss the lead-in clause extensively, we find it to be irrelevant. Under this clause, loss caused by earth movement or water damage is excluded "regardless of any other cause or event contributing concurrently or in any sequence to the loss." But this lead-in clause is not significant unless the peril suffered by the Wests falls within the meaning of excluded earth movement or water damage in the first place.

3. Extrinsic evidence

Again, the parties do not point to any relevant extrinsic evidence relating to the exclusions for earth movement and water damage.

4. Case law interpreting similar provisions

Umialik relies heavily on our decision in State Form Fire & Casualty Co. v. Bongen. In Bongen, the clear-cutting of a right-of-way for the installation of transmission lines caused mudslides, which damaged the plaintiffs home. This court relied on an exclusion for earth movement to deny coverage under the all risks homeowners insurance policy. The court found that the earth movement provisions were not ambiguous and refused to limit this exclusion to strictly natural phenomena.

But the peril suffered by the Wests is different. As discussed above, the water which damaged the Wests' home did not come from an external source, but from the insured improvements on the property. Although the earth movement exclusion is not necessarily limited to strictly natural events, it does not include perils that originate from insured improvements.

Furthermore, the State Farm policy in Bongen specifically excluded earth movement "whether combined with water or not." This provision is absent from the Umialik policy.

We have reviewed other cases, including those cited by Umialik, that have interpreted an earth movement exclusion broadly to exclude perils similar to that suffered by the Wests. But all of these cases involved a State Farm policy similar to that in Bongen explicitly excluding earth movement "whether combined with water or not." Thus, these other courts relied on language missing from the present policy. Additionally, the interpretation of insurance contracts in Alaska differs from the interpretation of insurance contracts in those jurisdictions interpreting "earth movement" broadly: these courts require a finding of ambiguity before applying the doctrine of reasonable expectations. We do not require such a finding.

On the other hand, cases interpreting earth movement exclusions that do not contain the "whether combined with water or not" language have found coverage for damage caused by bursting pipes. At least two courts have distinguished the "whether combined with water or not" language. Also these cases construe the earth movement exclusion to be limited to naturally occurring events.

With respect to water damage, we note that numerous authorities discussing a water damage exclusion similar to the present one have limited the water damage exclusion to natural phenomena. Couch on Insurance notes that "[the exclusion of water below the surface has been held to apply only to natural flooding, as opposed to flooding by water emanating from artificial means. For example, Couch finds "authority to the effect that the exclusion does not encompass loss from subsurface water present from a leak in the plumbing system. New York cases interpreting similar water damage exclusions have distinguished between natural and non-natural forces. In another case construing a similar exclusion, the court recognized that "the majority of the states ... construe the underground water exclusion as water of natural origin." Umialik does not point to any cases excluding coverage for water damage that originated from the homeowners' property improvements.

Therefore, we hold that the exclusions for earth movement and water damage do not preclude coverage in this case.

V. CONCLUSION

Because the insurance policy exclusions relating to settling, earth movement, and water damage can reasonably be interpreted to be limited to naturally occurring phenomena or perils external to the insured property, we REVERSE the superior court's judgment and direct the superior court to enter summary judgment in favor of the Wests.

      . The Insurance Policy provides in relevant part, as follows:
      SECTION I PERILS INSURED AGAINST COVERAGE A-DWELLING and COVERAGE B-OTHER STRUCTURES
      We insure against risk of direct loss to property.... We do not insure, however, for loss

      2. Caused by:
      a. Freezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing. This exclusion applies only while the dwelling is vacant, unoccupied or being constructed....

      e. Any of the following: (1) Wear and tear, marring, deterioration;
      (2) Inherent vice, latent defect, mechanical breakdown;
      (3) Smog, rust or other corrosion, mold, wet or dry rot;
      (4) Smoke from agricultural smudging or industrial operations;
      (5) Discharge, dispersal, seepage, migration, release or escape of pollutants....
      (6) Settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings;
      (7) Birds, vermin, rodents, or insects; or (8) Animals owned or kept by an "insured." If any of these cause water damage not otherwise excluded ... we cover loss caused by the water....

      SECTION I EXCLUSIONS
      1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.

      Earth Movement, meaning earthquake including land shock waves or tremors before, during or after a volcanic eruption; landslide; mine subsidence; - mudflow; earth sinking, rising or shifting....

      c. - Water Damage, meaning:
      (1) Flood, surface water, waves, tidal water overflow of a body of water, or spray from any of these, whether or not driven by wind;
      (2) Water which backs up through sewers or drains or which overflows from a sump; or
      (3) Water below the surface of the ground, including water which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure.

      . See Kenneth H. York et al., Cases, Materials and Problems on General Practice Insurance Law 229-30 (3d ed.1994).

      . See Department of Health & Soc. Servs. v. Alaska State Hosp. & Nursing Home Ass'n, 856 P.2d 755, 759-60 (Alaska 1993).

      . Alaska R. Civ. P. 56(c).

      . See State v. Alaska Civil Liberties Union, 978 P.2d 597, 603 (Alaska 1999), cert. denied, - U.S. --, 120 S.Ct. 1156, 145 LEd.2d 1069 (2000).

      . See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . - Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1294 (Alaska 1994).

      . See id.; State v. Underwriters at Lloyds, London, 755 P.2d 396, 400 (Alaska 1988).

      . Underwriters at Lloyds, 755 P.2d at 400 (quoting Robert E. Keeton, Basic Text on Insurance Law § 6.3(a), at 351 (1971)).

      . See, eg., Grace v. Insurance Co. of N. Am., 944 P.2d 460, 467 n. 15 (Alaska 1997); U.S. Fire Ins. Co. v. Colver, 600 P.2d 1, 3 (Alaska 1979).

      . See Bering Strait, 873 P.2d at 1295.

      . See id.

      . Cf. Souza v. Corvick, 441 F.2d 1013, 1020-21 (D.C.Cir.1970) (holding that damage to realty was not excluded from coverage if such damage resulted from subsidence caused by something other than soil condition despite homeowners' expert's description of the damage as settling").

      . 4 F.Supp.2d 1288, 1296 (D.N.M.1998).

      . Id. at 1295 (citing with approval Holy Angels Academy v. Hartford Ins. Group, 127 Misc.2d 1024, 487 N.Y.S.2d 1005, 1007 (N.Y.Sup.1985) (alterations in original)).

      . The Umialik policy is set out in note 1, supra. Compare SECTION I-PERILS INSURED AGAINST, paragraph 2(e)(1)-(6) with the Hartford policy, which provides in relevant part as follows:
      This policy does not insure under this form against ...
      E. Loss caused by:
      1. Wear and tear, deterioration, rust or corrosion, mold, wet or dry rot; inherent or latent defect; smog, vapor or gas from agricultural or industrial operations; mechanical breakdown, including rupture or bursting caused by centrifugal force; settling, cracking, shrinkage, bulging or expansion of pavements, foundations, walls, floors, roofs and ceilings; animals, birds, vermin, termites or other insects; unless loss by a peril not otherwise excluded ensues and then the Company shall be liable for only such ensuing loss.
      487 - N.Y.S.2d at 1006 (emphasis added).

      . Holy Angels Academy, 487 NY.S.2d at 1007.

      . 441 F.2d 1013 (D.C.Cir.1970).

      . 4 F.Supp.2d 1288 (D.N.M.1998).

      . 441 F.2d at 1021.

      . Id.

      . Id.

      . Id. at 1022.

      . 4 F.Supp.2d at 1290.

      . Id. at 1295.

      . 11 Couch on Insurance § 153:79 (3d ed.1998).

      . New Zealand Ins. Co. v. Lenoff, 315 F.2d 95, 96 (9th Cir.1963) (emphasis added) (citing Sabel-la v. Wisler, 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889 (1963)). The disputed New Zealand policy provision was similar to the Hartford provision set forth in note 16, supra. See id. at 95 n. 1.

      . 294 $o.2d 362, 363 (Fla.App.1974).

      . Id.

      . Id. at 364.

      . Barash v. Insurance Co. of N. Am., 114 Misc.2d 325, 451 N.Y.S.2d 603, 605 (N.Y.Sup. 1982).

      . 925 P.2d 1042, 1045-47 (Alaska 1996).

      . Id. at 1045-46.

      . See id. at 1047.

      . Id. at 1046.

      . See supra, note 1, under "EXCLUSIONS", paragraphs 1(b) & (c).

      . See Borgen, 925 P.2d at 1046.

      . See, eg., State v. First Nat'l Bank of Anchorage, 660 P.2d 406, 419 n. 24 (Alaska 1982) (construing the word "disposition," which AS 34.55.044(1) defines as including the "sale, lease, assignment, award by lottery, or any other transaction concerning a subdivision," under the doctrine of efusdem generis as limited to transactions involving the transfer of an interest in land).

      . See Winters v. Charter Oak Fire Ins. Co., 4 F.Supp.2d 1288, 1291-92 (D.N.M.1998).

      . 925 P.2d 1042 (Alaska 1996).

      . - Id. at 1043.

      . See id. at 1044-47.

      . See id. at 1045-46.

      . See part IV.C.1, supra.

      . 925 P.2d at 1043.

      . See Schroeder v. State Farm Fire & Cas. Co., 770 F.Supp. 558, 560 (D.Nev.1991); Millar v. State Farm Fire & Cas. Co., 167 Ariz. 93, 804 P.2d 822, 824-25 (App.1990); Kula v. State Farm Fire & Cas. Co., 212 A.D.2d 16, 628 NY.S.2d 988, 991 (N.Y.App.Div.1995); Village Inn Ap'ts. v. State Farm Fire & Cas. Co., 790 P.2d 581, 582-83 (Utah App.1990).

      . See Schroeder, 770 F.Supp. at 560; Millar, 804 P.2d at 824-25; Kula, 628 N.Y.S.2d at 989; Village Inn, 790 P.2d at 582.

      . See Millar, 804 P.2d at 824; Schroeder, 770 F.Supp. at 562; Kula, 628 N.Y.S.2d at 990; Village Inn, 790 P.2d at 582.

      . - See Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1295 (Alaska 1994) ("Construction of an insurance policy under the principle of reasonable expectations does not depend on a prior determination of policy ambiguity.").

      . See Winters v. Charter Oak Fire Ins. Co., 4 F.Supp.2d 1288, 1292 (D.N.M.1998); Sentinel Assocs. v. American Mfrs. Mut. Ins. Co., 804 F.Supp. 815, 819 (B.D.Va.1992) aff'd, 30 F.3d 130 (4th Cir.1994).

      . See, Winters, 4 F.Supp.2d at 1291 (construing the term "to cover only naturally occurring phenomena such as earthquake or landslide" where a broken pipe caused earth movement); Sentinel Assocs., 804 F.Supp. at 816, 818-19 (limiting an earth movement exclusion to natural phenomena and noting that "numerous courts faced with analogous language have reached similar conclusion").

      . 11 Couch on Insurance § 153:68 (3d ed.1998).

      . Id.

      . See Ender v. National Fire Ins. Co. of Hartford, 169 A.D.2d 420, 563 N.Y.S.2d 85 (N.Y.App.Div. 1991); Popkin v. Security Mut. Ins. Co. of N.Y., 48 A.D.2d 46, 367 NY.S.2d 492 (N.Y.App.Div. 1975).

      . Adrian Assocs., Gen. Contractors v. National Sur. Corp., 638 S.W.2d 138, 141 (Tex.App.1982), affd, National Sur. Corp. v. Adrian Assocs., Gen. Contractors, 650 S.W.2d 67 (Tex.1983).

      . Umialik does cite to one case excluding water damage, but in that case the water damage originated from an external source. See Buttelworth v. Westfield Ins. Co., 41 Ohio App.3d 288, 535 N.E.2d 320, 321 (1987) (excluding coverage for water damage resulting from burst pipe on neighbor's property); see also Rodin v. State Farm Fire & Cas. Co., 844 SMW.2d 537, 538 (Mo.App.1992) (excluding coverage for sewage back-up originating from roots in sewer system).


author: STEWART, Judge.

text:
    Sidney R. HERTZ, Appellant. v. STATE of Alaska, Appellee.
    No. A-7279.
    Court of Appeals of Alaska.
    Sept. 15, 2000.
    Sidney R. Hertz, in propria persona, Florence, Arizona, for Appellant.

      Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before COATS, Chief Judge, STEWART, Judge, and RABINOWITZ, Senior Supreme Court Justice.

       Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

   0 P I N I 0 N

STEWART, Judge.

On December 10, 1998, Sidney R. Hertz filed a complaint in the Anchorage Superior Court entitled "Application for Writ of Habe-as Corpus for Ineffective Assistance of Counsel." On December 31, 1998, Superior Court Judge Elaine M. Andrews issued a suc sponte order that directed Hertz to refile his complaint as an application for postconviction relief under Criminal Rule 35.1. Hertz claims that Judge Andrews erred by issuing this order. We disagree and affirm the order of the superior court.

Facts and proceedings

In 1984, Sidney R. Hertz was indicted on one count of first-degree murder. Following a jury trial, Hertz was convicted of second-degree murder. Superior Court Judge J. Justin Ripley sentenced Hertz to a forty-year term and restricted Hertz's parole eligibility for twenty years. On direct appeal, Hertz challenged his conviction and sentence, which this court affirmed.

Hertz has also filed several applications for post-conviction relief. We affirmed the eventual denial or dismissal of each of Hertz's previous post-conviction relief applications. See Hertz v. State, 755 P.2d 406 (Alaska App.1988) (remanding with instructions that Hertz be afforded assistance of counsel in pursuing his initial post-conviction relief application); Hertz v. State Memorandum Opinion and Judgment No. 2858 (Alaska App., February 19, 1992); Hertz v. State, Memorandum Opinion and Judgment No. 2477 (Alaska App., July 29, 1992); Hertz v. State, Memorandum Opinion and Judgment No. 3069 (Alaska App., January 11, 1995); Hertz v. State, Memorandum Opinion and Judgment No. 3880 (Alaska App., September 2, 1998) We also upheld the superior court's denial of Hertz's motion to modify his sentence. See Hertz v. State, Memorandum Opinion and Judgment No. 8828, 1998 WL 288265 (Alaska App., June 3, 1998).

Here, Hertz appeals the superior court's order directing him to refile his complaint as an application for post-conviction relief. Hertz argues that this order effectively dismisses his complaint for habeas corpus. As Hertz concedes, the grounds for relief that he asserts below were raised (and rejected) in his earlier applications for post-conviction relief He points out that under AS 12.72.020(a), his pending application for post-conviction relief is subject to dismissal.

Discussion

Judge Andrews relied on Civil Rule 86(m) (the rule governing habeas corpus procedures) to direct Hertz to refile his complaint as an application for post-conviction relief. Civil Rule 86(m) provides:

This rule does not apply to any post-conviction proceeding that could be brought under Criminal Rule 85.1. The court shall treat such a complaint as an application for post-conviction relief under Criminal Rule 85.1 and, if necessary, transfer the application to the court of appropriate jurisdiction for proceedings under that rule.

Hertz contends that Judge Andrews could not apply this rule to order him to refile his complaint as an application for post-convietion relief. Hertz claims that a trial judge can order a complaint for habeas corpus to be refiled as an application for post-conviction relief only if it "could be brought under Criminal Rule 85.1." Because his pending application is subject to dismissal under several subsections of AS 12.72.020(a), he claims that his complaint for habeas corpus is not one that "could be brought under Criminal Rule 85.1." Given this circumstance, Hertz concludes that Judge Andrews could not apply Civil Rule 86(m) to his case because his case is likely to be dismissed if it is processed as an application for post-conviction relief.

6. In Herff, MO & J No. 3828, this court rejected Hertz's position that application of newly amended Criminal Rule 35.1 to his case was an unconstitutional ex post facto violation. Id. at 3-4. And, this court concluded that the trial court did not err in dismissing Hertz's motion to correct or modify his sentence. Id. at 4.

Under Criminal Rule 35.1, a person may apply for post-conviction relief if the person claims "that the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of Alaska[.]" Also, Criminal Rule 85.1 provides that the post-conviction procedure regulated by the rule "is intended to provide a standard procedure for accomplishing the objectives of all of the constitutional, statutory or common law writs."

In Hertz's superior court pleadings, he challenges the validity of his conviction and sentence by claiming ineffective assistance of counsel on his direct appeal. He argues generally that his appellate attorney's overall performance was poor and specifically that the attorney should have addressed Judge Ripley's refusal to instruct the fury on self-defense. These incompetence of counsel claims are grounded in the Sixth Amendment and article I, section 11 of the Alaska Constitution. Thus, Judge Andrews did not err in applying Civil Rule 86(m) to Hertz's complaint because, in that complaint, Hertz sought relief on the constitutionally-based claim of ineffective assistance of counsel. Because Hertz's complaint for habeas corpus relief could be brought under Criminal Rule 35.1, Judge Andrews properly applied Civil Rule 86(m) to direct Hertz to refile his action as an application for post-conviction relief.

Furthermore, we reject Hertg's claim that Civil Rule 86(m) cannot apply to an action that could be brought pursuant to Criminal Rule 35.1 but that might later be dismissed because of a substantive or procedural shortcoming. Hertz provides no authority for such an interpretation. And Hertz points to nothing in the rules to support this reading of Rule 86(m). In addition, that reading would subvert the legislature's intent underlying AS 12.72.020 and the amendment to Criminal Rule 85.1. There is substantial evidence that the legislature intended to limit successive applications for post-conviction relief in any one case. Governor Knowles transmittal letter of February 27, 1995, accompanying House Bill 201 provides evidence of this legislative intent:

[This bill} set[s] limits on the ability of prisoners to challenge their convictions years after they have already pursued normal appellate procedures and lost. After a prisoner loses on direct appeal, current law allows the prisoner to pursue a second or third round of challenges in state court.... This bill seeks to reduce the number of third and subsequent rounds of challenges currently allowed under state law. This would limit most prisoners to one direct appeal and one set of post-conviction relief proceedings in the state court system and one set of post-conviction relief proceedings in the federal system.

Hertz also states that ordering him to refile his complaint as an application for post-conviction relief amounts to an unconstitutional suspension of the writ of habeas corpus. But Hertz has not explained how refiling his action as an application for post-conviction relief amounts to a suspension of the writ. The procedures that must be followed under Criminal Rule 35.1 provide an orderly method for considering collateral attacks on a person's conviction. Hertz has not argued that the process established by Criminal Rule 35.1 or its predecessors is. or was inadequate to litigate his claims.

Furthermore, it is not enough for Hertz to claim that he faces dismissal under the post-conviction relief procedure and that the impending dismissal amounts to a suspension of the writ. Many jurisdictions, including Alaska, have imposed limits on post-conviction relief claims. Both time limits and procedural bars to successive post-conviction relief applications have been upheld. In Felker v. Turpin, the Supreme Court ruled that a statutory limitation on successive applications for habeas corpus relief did not violate the Suspension Clause of the Constitution. And in McCleskey v. Zant, the Supreme Court ruled that it was an abuse of the writ, and therefore prohibited, to file successive habeas corpus claims without any explanation of why the petitioner did not raise the claims in his original application. Other states have upheld limitations on successive post-conviction relief claims. In Kills on Top v. State, the Montana Supreme Court ruled that grounds that a petitioner could reasonably have raised on appeal are procedurally barred from consideration in a post-convietion relief proceeding. In Dromiack v. Warden, Nevada State Prison, the Nevada Supreme Court ruled that courts need not consider successive post-conviction relief applications, unless the grounds for relief could not reasonably have been raised in the original petition. Hertz has offered no convincing authority or argument why a similar limitation under Alaska law would violate the anti-suspension clause of Article I, Section 13 of the Alaska Constitution.

Still, Hertz maintains that he should be able to pursue his action in habeas corpus and avoid the impending statutory bars in AS 12.72,020(a). To support this argument, Hertz highlights a line from our supreme court's decision in McCracken v. Corey: "Historically, res judicata did not operate as a bar to habeas corpus." - Hertz also stresses another quote from McCracken :

It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas corpus proceedings ... is really but an instance of the larger principle that void judgments may be collaterally impeached.

We agree with that general premise-that a person held under a void judgment can seek redress in habeas corpus. We also recognize that AS 12.72.020(a) established explicit limitations on successive applications for post-conviction relief. Arguably, if a post-convietion relief applicant raised a claim that the underlying criminal judgment was void, a procedural bar under AS 12.72.020(a) might be unconstitutional.

But Hertz acknowledges that he has previously raised his pending claims. Furthermore, Hertz does not maintain that the superior court lacked personal or subject matter jurisdiction of his case nor any other claim that the superior court's judgment is otherwise void. Hertz's application below claims that his attorney's assistance during the direct appeal of his conviction was deficient. But this is not an attack that claims that the superior court's judgment is void. Because Hertz's application did not claim that the underlying judgment was void, his claim that

the superior court suspended the writ of habeas corpus by directing him to refile his complaint as an application for post-conviction relief is without merit.

Conclusion

The judgment of the superior court is AFFIRMED.

MANNHEIMER, Judge, not participating.

      . See Hertz v. State, Memorandum Opinion and Judgment No. 1225 (Alaska App., September 10, 1986). In that case, this court also concluded that: the trial court did not amend the indict» ment by instructing the jury on second-degree murder; the trial judge did not err in instructing the jury on second-degree murder over defense objection; Hertz's claim that the second-degree murder instruction was incorrect was without merit; the trial court did not err in instructing the jury that voluntary intoxication did not negate the culpable mental state for extreme indifference murder; and Hertz did not establish prosecutorial misconduct. Id. at 4-6.

      . In Hertz, MO & J No. 2358, this court concluded that Hertz had waived his right to counsel and had moved to dismiss his post-conviction relief application.

      . In Hertz, MO & J No. 2477, this court concluded that the superior court did not err in dismissing Hertz's February 1991 post-conviction relief application, in which he asserted in part that the trial court erred in instructing the jury on the lesser-included offense of second-degree murder.

      . In Hertz, MO & J No. 3069, Hertz challenged the superior court's dismissal of his third post-conviction relief application, in which he raised eight claims: (1) that he received ineffective assistance of counsel on the merit appeal; (2) that the trial court erred in instructing the jury on the lesser included offense of second-degree murder; (3) that the second-degree murder instruction constructively amended the indictment; (4) that Hertz received ineffective assistance of counsel in pursuing his post-conviction relief claims; (5) that Hertz had a conflict of interest with the Public Defender Agency; (6) that Hertz received ineffective assistance of counsel from the Public Defender Agency; (7) that the superior court erred in denying his request for resubmission of the murder weapon to the FBI to test for fingerprints; (8) that the superior court denied Hertz access to the courts. Id. at 3 n. 2. This court affirmed the superior court's dismissal of Hertz's third post-conviction relief application, explaining that Hertz had previously filed for post-conviction relief and had not advanced a "sufficient reason" for failing to raise his claims in his earlier application, that some of the issues had been decided, and that some issues had been waived by Hertz. Id. at 2-3.

      . In Hertz, MO & J No. 3880, this court upheld the superior court's dismissal of Hertz's fourth application for post-conviction relief that raised claims that had been raised in earlier applications for post-conviction relief.

      . AS 12.72.020(a) provides: A claim may not be brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure if
      (1) the claim is based on the admission or exclusion of evidence at trial or on the ground that the sentence is excessive;
      (2) the claim was, or could have been but was not, raised in a direct appeal from the proceeding that resulted in the conviction;
      (3) the later of the following dates has passed, except that if the applicant claims that the sentence was illegal there is no time limit on the claim:
      (A) if the claim relates to a conviction, two years after the entry of the judgment of the conviction or, if the conviction was appealed, one year after the court's decision is final under the Alaska Rules of Appellate Procedure;
      (B) if the claim relates to a court revocation of probation, two years after the entry of the court order revoking probation or, if the order revoking probation was appealed, one year after the court's decision is final under the Alaska Rules of Appellate Procedure;
      (4) one year or more has elapsed from the final administrative decision of the Board of Parole or the Department of Corrections that is being collaterally attacked; (5) the claim was decided on its merits or on procedural grounds in any previous proceeding; or
      (6) a previous application for post-conviction relief has been filed under this chapter or under the Alaska Rules of Criminal Procedure.

      . Under former Criminal Rule 35.1(b), which governed post-conviction relief procedures and was less restrictive than the legislation that enacted AS 12.72.020, the superior court could have properly denied Hertz's application. That rule provided:
      Waiver of or Failure to Assert Claims. All grounds for relief available to an applicant under this rule must be raised in the original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, - voluntarily, - and - intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.
      Under former Rule 35.1(b), petitioners were barred from pursuing claims that could have been raised in a previous post-conviction relief application, absent a showing of a "sufficient reason" for not raising the claims. See Thompson v. State, 496 P.2d 651, 654-55 (Alaska 1972); Bangs v. State, 911 P.2d 1067, 1069 (Alaska App. 1996); Billingsley v. State, 807 P.2d 1102, 1106 (Alaska App.1991). Under former Rule 35.1, Hertz would be precluded from filing a post-conviction relief application because he did not assert a "sufficient reason" for failing to raise his current claims for post-conviction relief in his prior applications, as required by that rule

      . Alaska Rule of Criminal Procedure 35.1(a)(1).

      . - Alaska Rule of Criminal Procedure 35.1(b).

      . 1995 House Journal 490. A transmittal letter constitutes substantial evidence of legislative intent. See Flisock v. State, 818 P.2d 640, 645 (Alaska 1991); 2A Norman J. Singer, Sutherland . Statutory Construction - § 48.05 (5th ed.1992).

      . See Taggard v. State, 500 P.2d 238, 241 n. 7 (Alaska 1972) (The "writ of habeas corpus is an extraordinary remedy and will not ordinarily be granted when there is another adequate remedy."). ~

      . See, e.g., Colo.Rev.Stat.Ann. § 16-5-402 (West 1998); Fla.Stat.Ann. § 3.850; Idaho Code § 19-4902 (West Supp.1998); 725 Ill.Comp.Stat.Ann. para. 5/122-1 (West 1992); Iowa Code Ann. § 822.3 (West 1994); Miss.Code Ann. § 99-39-5(2) (Supp.1996); Mo.R.Crim.P. 24.035, 29.15; Nev.Rev.Stat.Ann. § 34.800 (Michie 1996); N.J.Crim.Prac.Rule 3:22-12; Or.Rev.Stat. § 138.510 (1997); S.D. Codified Laws § 21-27-3.2 (Michie Supp.1997); Utah Code Ann. § 78-35a-107 (1996); Wyo.Stat.Ann. § 7-14-103 (Mi-chie 1997).

      . See Felker v. Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

      . See McCleskey v. Zant, 499 U.S. 467, 488, 111 S.Ct. 1454, 113 LEd.2d 517 (1991).

      . 273 Mont. 32, 901 P.2d 1368, 1385-87 (1995).

      . 97 Nev, 348, 630 P.2d 751, 751-52 (1981).

      . 612 P.2d 990, 992 (Alaska 1980).

      . Id. at 992 (quoting Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 9 LEd.2d 837 (1963)) (citations omitted).

      . See, eg., McCracken v. Corey, 612 P.2d 990, 992 n. 6 (Alaska 1980); Taggard v. State, 500 P.2d 238, 242 (Alaska 1972); Perry v. State, 429 P.2d 249, 251-52 (Alaska 1967).