text:
    2002 WY 55
    Ronald R. LINEBERGER, Appellant (Petitioner), v. WYOMING STATE BOARD OF OUTFITTERS AND PROFESSIONAL GUIDES, Appellee (Respondent).
    No. 01-113.
    Supreme Court of Wyoming.
    April 11, 2002.

      S. Joseph Darrah. of Darrah & Darrah, P.C., Powell, WYO, and Daniel B. Frank of Frank Law Office, P.C., Cheyenne, WYO, Representing Appellant.
    Hoke MacMillan, Attorney General; Michael L. Hubbard, Deputy Attorney General; and Eugene W. Jackson, Assistant Attorney General, Cheyenne, WYO, Representing Ap-pellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] This case comes before us in the form of a Petition for Review of Agency Action, certified to this Court by the district court pursuant to W.R.A.P. 12.09. Ronald R. Lineberger (the appellant) raises nine separate issues in contesting the decision of the Wyoming State Board of Outfitters and Professional Guides (the Board) to deny his 2000 application for a professional guide license. While we conclude that the issues have been rendered moot by the passage of time, we do hold, since the issue will no doubt continue to arise, that the Board exceeded its authority by imposing a condition on the appellant's license to the effect that he would voluntarily relinquish his license if convicted of violating any state or federal law.

ISSUES

[12] The appellant states the issues as follows:

1. Did the Board exceed its statutory authority, abuse its discretion, and act arbitrarily and capriciously when it required petitioner, as a condition of obtaining his professional guide license, to sign a waiver agreement which provided that he would forfeit his license in the event he was convicted for violation of any law?
2. Did the Board exceed its statutory authority, abuse its discretion, and act arbitrarily and capriciously when it refused to renew petitioner's guide license on the basis that he was convicted of violating a law which was unrelated to the occupation of guiding?
3. Did the Board exceed its legal authority, act arbitrarily and capriciously, abuse its discretion, and act not otherwise in accordance with the law when it required petitioner to execute the waiver agreement after petitioner was already licensed in 1989?
4. Was the Board's interpretation of the waiver agreement in which it interpreted the agreement to require petitioner to forfeit his guide's license in the event that he is convicted of violating any law proper and an abuse of discretion, or is the waiver agreement limited to violations of law related to a candidate's fitness to be a professional guide?
5. Does the administrative record contain substantial evidence to support the Board's decision to deny petitioner's application?
6. Did the Board include improper findings of fact outside of the administrative record?
7. Did a Board member who took part in the investigation improperly refuse to recuse himself from deliberations in violation of Wyo. Stat. § 16-83-1117?
8. Did the Board engage in prohibited post hoe rationalization decision-making when it stated on the record that its decision was to deny petitioner's application, but ordered the parties to file proposed findings of fact and conclusions of law to support the Board's decision?
Was the Board's decision arbitrary and capricious, an abuse of discretion and otherwise not otherwise in accordance with the law?

The ing: Board reduces these issues to the follow-

T. Whether the Board had authority to require Lineberger to sign a waiver before issuing Lineberger a conditional professional guide's license.
IL. Whether the Board was correct in denying Lineberger's application for a professional guide's license.
II I. Whether the process was tainted when the Board member refused to recuse himself.

[1 3] For the reasons set forth more fully below, we will directly answer only the following question:

May the Board condition the granting of a professional guide's license upon a license re is al e's agreement that he will voluntarily linquish the license in the event that he convicted of violating any state or feder-law?

THE STATUTORY CONSTRUCT

(1 4] Non-residents may not hunt big or trophy game animals on wilderness areas in Wyoming unless accompanied by a licensed professional guide or a resident guide. Wyo. Stat. Ann. § 23-2-401(a) (Lexis Supp.2000). The Board is responsible for licensing guides under Wyo. Stat. Ann. § 28-2410 (Lexis-Nexis 2001):

(a) The board shall:
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(i) Carry out the provisions of this act and in accordance with the Wyoming Administrative Procedure Act, adopt necessary rules and regulations for carrying out this act including requirements for training, experience and knowledge
of relevant law and rules and regulations as may be imposed upon outfitters and professional guides, the content and requirements for examination of license applicants and other necessary and reasonable rules[.]
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(c) The board shall license and regulate outfitters and professional guides in this state and shall:
(i) Examine applicants for licensure under this act;
(ii) Deny or approve applications for licensure and may revoke or suspend licenses in accordance with this act and its rules and regulations;
(iii) Conduct hearings upon complaints received relative to licensees;
(iv) Impose reasonable - restrictions and limitations upon licensees as necessary to implement this act;
(v) Designate areas within the state as recommended by the commission for game management purposes in which a licensee may conduct outfitting or professional guiding under the license[.]

[15] Specific statutory qualifications for a professional guide's license are contained in Wyo. Stat. Ann. § 28-2-412(a) (LexisNexis 2001):

(a) An applicant for a professional guide's license under this act shall meet the following qualifications:
(i) At least eighteen (18) years of age;
(ii) Employed by or operating under an independent contract with a licensed outfitter[.]

The same statute, in subsection (e), adds the following requirements:

(e) In addition to subsection (a) of this section, an applicant for a professional guide's license shall report:
(i) Any conviction or forfeiture of any bond amount for a violation of federal or state law or applicable regulation relating to wildlife, game and fish within five (5) years before the date of filing license application;
(ii) Any felony conviction; and
(ifi) Any conviction for a violation of federal or state law relating to criminal fraud and occurring within five (5) years prior to the date of filing application.

[16] The Board's authority to require examination before licensure is found in Wyo. Stat. Ann. § 28-2-418 (LexisNexis 2001). Under subsection (c) of that section, the Board is authorized to "investigate the qualifications of the applicant to ensure compliance with this act." Once the applicant has passed the required examination and the Board has "determine{d] the applicant is otherwise in compliance with the requirements of this act and its rules and regulations," the Board "may" issue a license. Wyo. Stat. Ann. § 28-2-414(a) (LexisNexis 2001).

[T7] Of specific significance to the issue at hand is the limitation found in Wyo. Stat. Ann. § 28-2-414(b):

A license issued under this act is valid for the calendar year in which issued and shall expire on December 31 of that year unless earlier expiring pursuant to W.S. 23-2-412(b) or otherwise suspended or revoked.

FACTS

[T8] In 1993, the appellant was convicted of three federal wildlife-related felonies. He served a year in prison and three years of probation. In 1998, the appellant applied to the Board for a professional guide's license. The Board granted the application, but only after conditioning the license for a period of five years. The appellant signed an agreement on August 10, 1998, with the following specific condition:

I agree to a five year conditional license, wherein if I am convicted of violating any game & fish, Board law or rule and regulation, Forest Service, State or Federal law for this duration, I will voluntarily relinquish my guide's license to the Board and I waive any right to appeal or hearing procedure.

[T 9] The appellant received his conditional professional guide's license in 1998 and again in 1999. He applied again on June 20, 2000. His application was not granted; instead, it was returned to him with instructions to appear before the Board at its next meeting so renewal could be considered in light of the appellant's "current conviction." That "current conviction" is the basis of the present petition for review.

[110] On June 9, 2000, a Judgment and Sentence was entered in the County Court of Park County, Wyoming (now referred to as Cireuit Court), adjudicating the appellant guilty of two counts of misdemeanor property destruction. The convictions were the result of a plea agreement between the appellant and the Park County and Prosecuting Attorney. The Judgment and Sentence neither mentions the nature of the property destroyed nor names the recipient of the $4,000.00 in restitution ordered to be paid by the appellant. The only hint that the charges may have involved wildlife is the following paragraph in the Written Plea Agreement of Defendant:

7. The State of Wyoming further expressly represents and agrees that no other criminal charges or investigations whether they be State and/or Local will be filed, sought and/or pursued pursuant as against the Defendant, Mr. Ronald R. Lineberger, as relates to the original criminal information filed in this matter, and including any copper tags attached to the snares or traps inscribed with the name Ronald R. Lineberger the same or similar to such tags presently in the possession of the State of Wyoming, and referenced as State of Wyoming v. Ronald R. Lineberger, Criminal No. Cr-9909-4-COD.

[T11]l It is at this point that we must digress a bit to at least mention how odd it is that we are called upon in this case to decide whether the Board may condition a professional guide's license upon the violation of any law as opposed to a wildlife or game and fish law. Appendix E attached to the Board's appellate brief is a copy of the original Summons issued to the appellant in October 1999, in Case No. CR-9909-4-COD. That summons alleges three counts of wanton destruction of a big or trophy game animal and one count of failing to report the unlawful trapping of a deer. No doubt, it is within the province of the Park County and Prosecuting Attorney's duties to plea bargain a violation of the game and fish statutes to a violation of the criminal code. Unfortunately, however, the divergence between the original charges and the eventual convictions precipitated an administrative process that cannot be characterized as a search for the truth. Eventually, even the Board joined the appellant's attempt to pretend that the "current conviction" had nothing to do with wildlife.

[112] The appellant appeared at the Board's regular meeting on August 26, 2000. Since the conditions imposed by the Board in 1998 were still in effect, the minutes of the meeting reflect the appellant's appearance as being "for violating the terms of the issuance of his 1998 Professional Guide's license." A lengthy discussion ensued at the meeting between Board members and the appellant, with the Board members trying to get the appellant to admit that the property destruction convictions involved the destruction of wildlife, and with the appellant eventually "claiming the Fifth Amendment" in response. The end result was Board denial of the appellant's 2000 application.

[113] The appellant requested a contested case hearing following the denial of his application. The Board held that hearing on February 27, 2001. What transpired at that hearing is remarkable, for several reasons. The first thing that should be noted is that the license application being considered was for the year 2000. Wyo. Stat. Ann. § 23-2-414(b) mandates that, had such a license been granted, it would have been valid only until December 31, 2000. The contested case hearing took place nearly two months after that date. While counsel and the hearing examiner grappled with the question of whether the matter before the Board was the denial of a new application or denial of a renewal application, they never squarely faced the fact that any application for a 2000 license was moot.

[114] The second remarkable feature of the contested case hearing was the agreement of the parties to limit the issue to whether the Judgment and Sentence showing the two misdemeanor property destruction convictions-being violations of any state or federal law-were violations of the 1998 agreement. While it is, perhaps, not surprising that the appellant would be delighted by the exclusion of any evidence as to the original wildlife charges, it is not nearly so clear why the Board made this concession. In any event, the result was that the Board chose to take a stand on the limited question of whether the Board can impose a condition that a licensee may not violate any law:

[ASSISTANT ATTORNEY GENERAL]: Actually I will speak to that. He just talked at length about significant wildlife violations, and I'm saying it doesn't matter whether there's a wildlife violation or not.
What happened was Mr. Lineberger sent a letter to the Board saying I would like to request a probationary license. The Board granted a probationary license. The conditions on that probationary license were, one, the conditions would stay in effect for five years; two, he would not violate any state or federal laws, and then there were other conditions dealing with Game and Fish regulations, Board regulations, Forestry Service regulations, but it said also in there no violations of state or federal law.
Now, the Board placed those restrictions on the license under Wyoming Statute 23-2-410(c)(iv), and I'll read that to you, and it says, "The Board shall impose reasonable restrictions and limitations upon licensees as necessary to implement this act." That's what they did when they established those restrictions.

[T15] The third unusual feature of the contested case hearing, which we will note in passing, is that, after the parties agreed to exclude the testimony of anyone who knew anything about the events underlying the misdemeanor convictions, the next thirty pages of the hearing transcript are devoted to voir dire of the Board by the appellant's counsel to make sure that, in case any Board members did know the facts, they would not be influenced by them!

STANDARD OF REVIEW

[T 16] The standard for judicial review of administrative agency action is found in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be: ‘
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

See also Wyoming Bd. of Outfitters and Professional Guides v. Clark, 2002 WY 24, ¶ 7, 89 P.3d 1106, 1108 (Wyo.2002).

DISCUSSION

[117] We have recently answered several of the questions raised by this petition for review. In particular, we have stated that: (1) by conditioning a professional guide license for a number of years, the Board has not granted a multi-year license, since such is beyond the Board's statutory powers; and (2) the Board may impose licensing qualifications beyond the limited ones set forth in Wyo. Stat. Ann. § 28-2-412(a). Clark, 2002 WY 24, ¶¶ 10-14, 39 P.3d at 1109; Wyoming Bd. of Outfitters and Professional Guides v. Clark, 2001 WY 78, ¶¶ 11-20, 30 P.3d 36, 41-44 (Wyo.2001). In addition, in a case of this nature, the licensing issues have become moot:

We stated in the case of Smith Keller & Associates v. Dorr, 4 P.3d 872, 8176 (Wyo.2000) (citing Bard Ranch Co. v. Frederick, 950 P.2d 564, 566 (Wyo.1997)):
"Our general law on justiciability provides that courts should not consider issues which have become moot. Gulf Oil Corp. v. Wyoming Oil and Gas Conservation Comm'n, 693 P.2d 227, 233 (Wyo.1985). We do not decide cases when a decision will have no effect or pertains only to matters that might arise in the future. McLain v. Anderson, 933 P.2d 468, 472 (Wyo.1997). A case is moot when the deterrhination of an issue is sought which, if provided, will have no practical effect on the existing controversy. Id. Therefore, if events occur during the pendency of an appeal that cause a case to become moot or make determination of the issues unnecessary, we will dismiss it. Id.; see also Rocky Mountain Helicopters, Inc. v. Air Freight, Inc., 773 P.2d 911, 924-25 (Wyo.1989)."
In Sanches v. State, 982 P.2d 149, 150 (Wyo.1999), we further elaborated that a case is moot when the matter upon which a determination is sought presents no actual controversy or when a decision can have no practical effect. We have also recognized the general rule that the issue of mootness constitutes a question of law and may be properly addressed by a court sua sponte. Cooper v. Town of Pinedale, 1 P.3d 1197, 1201 (Wyo.2000) (citing, in part, Fund for Animals v. Babbitt, 89 F.3d 128, 132 (2nd Cir.1996)); see also Northern Utilities, Inc. v. Public Service Comm'n, 617 P.2d 1079, 1085 (Wyo.1980).
Seok ok
Any determination by this court relating to the bases upon which the Board denied the 1999 license is moot in that it would be wholly ineffectual and of no practical effect. Indeed, if this court were to rule that Clark should not have been denied his 1999 guide license, this determination would be completely inconsequential as the issuance of this license almost two years after the 1999 year has ended would be of no practical value to Clark. Similarly, if this court were to uphold the Board's action in denying Clark his 1999 guide license and reverse the ruling made by the district court, such would be equally of no worth at this late date.

Clark, 2002 WY 24, ¶¶ 9-15, 39 P.3d at 1108-09.

[118] One cireumstance, however, leads us to conclude that the single question we proposed earlier herein should be answered:

May the Board condition the granting of a professional guide's license upon a licensee's agreement that he will voluntarily relinquish the license in the event that he is convicted of violating any state or federal law?

[119] The conditioning of any license granted to the appellant was for a five-year period, 1998-2002. It is likely that the appellant will apply for a 2002 license, and that the Board will attempt onee again to impose the restriction that the appellant not violate any law. Perhaps that is even the reason the Board so carefully posited this as the only issue at the contested case hearing. At any rate, since the question has been fully developed and argued in this case, and since it is likely to arise again with the appellant, and likely with other applicants, we will address it.

[120] In a case substantially similar to the one now before this Court, although involving the revocation of a license rather than the denial of an application, we said the following about the authority of administrative agencies:

It is well established that:
"An administrative agency is limited in authority to powers legislatively delegated. 'Administrative agencies are creatures of statute and their power is dependent upon statutes, so that they must find within the statute warrant for the exercise of any authority which they claim. "
Amoco Production Co. v. State Bd. of Equalization, 12 P.3d 668, 673 (Wyo.2000) (citations omitted). "An agency is wholly without power to modify, dilute or change in any way the statutory provisions from which it derives its authority." Platte Development Co. v. State, Environmental Quality Council, 966 P.2d 972, 975 (Wyo.1998).

Disciplinary Matter of Billings, 2001 WY 81, ¶ 24, 30 P.3d 557, 568 (Wyo.2001). We then held that, where the statute provided for license revocation only for violation of a significant law pertaining to wildlife, the Board could not revoke a license for violation of any law pertaining to wildlife. Id. at 125, 30 P.3d at 569.

[121] The same principle applies in the instant case. Wyo. Stat. Ann. § 238-2-4l10(c)(iv) generally empowers the Board to impose "reasonable" restrictions and limitations to implement the act. More specifically, Wyo. Stat. Ann. § 23-2-412(e) requires license applicants to report convictions for (1) federal or state laws or regulations relating to wildlife or game and fish; (2) felonies; and (8) federal or state laws relating to criminal fraud. This subsection clearly indicates the legislature's intent as to what the Board may require in this regard. The Board is not free to add "(4) any federal or state law."

[T22] We strictly construe statutory language when determining the powers granted to an administrative agency. US West Communications, Inc. v. Wyoming Public Service Comm, 958 P.2d 371, 374 (Wyo.1998). The power of a board to grant or refuse a license must be based upon the qualifications of the applicant indicated in a statute. Peterson v. Incorporated Town of Guernsey, In Platte County, 26 Wyo. 272, 183 P. 645, 647 (1919). While licensing acts are passed for the public's protection, licensing requirements must be reasonable and not arbitrary. - Allhusen v. State By and Through Wyoming Mental Health Professions Licensing Bd., 898 P.2d 878, 885 (Wyo.1995). Fundamentally, the licensing requirement must be rationally related to the applicant's fitness for the occupation. Frank v. State By and Through Wyoming Bd. of Dental Examiners, 965 P.2d 674, 679 (Wyo.1998). See also Karan v. Adams, 807 F.Supp. 900, 907 (D.Conn.1992); Hughes v. Board of Architectural - Examiners, 17 Cal. 4th 763, 72 Cal.Rptr.2d 624, 952 P.2d 641, 657 (1998) and Indiana State Bd. of Registration and Ed. for Health Facility Administrators v. Cummings, 180 Ind.App. 164, 387 N.E.2d 491, 496 (1979).

CONCLUSION

[123] For the reasons set forth above, most of the issues presented by the parties in this case are moot. As to the single issue identified by this Court for resolution; we conclude that the Board does not have the statutory authority to impose a restriction upon a professional guide's license that requires the licensee voluntarily to relinquish the license in the event he is convicted of violating any state or federal law. The Board's authority in such regard is limited to the convictions and bond forfeitures specified by the legislature in Wyo. Stat. Ann. § 23-2-412(e).

      . We made it clear in Wyoming Bd. of Outfitters and Professional Guides v. Clark, 2002 WY 24, ¶ 13, 39 P.3d 1106, 1109 (Wyo.2002), that "the Board is expressly limited to granting a guide license for a period of no more than a one-year period" and that the Board could not issue a multi-year license even if it desired to do so.

      . This Court has used the same rationale in invalidating a statute that authorized suspension of drivers' licenses for persons under the age of majority who illegally possessed alcohol, where the violation bore no rational relationship to driver's licensing. Johnson v. State Hearing Examiner's Office, 838 P.2d 158, 167 (Wy.1992). While Johnson had more to do with equal protection than it did with administrative law or statutory construction, the underlying concept of the state interfering with the exercise of a right or privilege is the same.


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2002 WY 58
    The CITY OF POWELL, an incorporated municipality in Park County, Wyoming, Appellant (Defendant), v. Ardyce BUSBOOM and Lamoine Busboom, residents of Park County, Wyoming, Appellees (Plaintiffs).
    No. 01-85.
    Supreme Court of Wyoming.
    April 12, 2002.

      Stuart R. Day and Susan Chapin Stubson of Williams, Porter, Day & Neville, P.C., Casper, WY, Representing Appellant.
    (Glenn E. Smith of Glenn E. Smith & Associates, Cheyenne, Wyoming; and Steven A. Hanson of Hanson Law Office, Billings, MT, Representing Appellees.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] Ardyee Busboom was employed by the City of Powell, and her husband, La-moine Busboom, was self-employed. They were both covered by the City of Powell's health benefits plan which excluded coverage for work-related injuries including those arising from self-employment. Over a period of years, the City of Powell and its agent, Mountain States Administration Company (MSA), paid several of Mr. Busboom's work-related claims because the claim forms identified the injuries as being nonwork related. The Busbooms contended the City of Powell was estopped from denying Mr. Busboom's latest claim because it had covered prior similar claims and the Busbooms relied upon that coverage. The district court granted a summary judgment in favor of the Busbooms on the grounds of promissory estoppel, and the City of Powell appealed. We conclude the City of Powell's action did not, as a matter of law, establish a clear and definite promise so as to permit the Busbooms to recover under the promissory estoppel theory. We reverse the summary judgment in favor of the Busbooms and remand for the entry of a summary judgment in favor of the City of Powell.

ISSUE

[12] The City of Powell presents the following issue for our review:

A. Did the district court err in its finding that Appellees Ardyce and Lamoine Busboom were entitled to judgment as a matter of law based on the uncontroverted facts contained in the record as to Plaintiffs First Claim for Relief against the City of Powell alleging Promissory Estop-pel?

The Busbooms accept the City of Powell's statement of the issue.

FACTS

[13] Mrs. Busboom has been an employee with the City of Powell since 1977. In 1989, the City of Powell adopted a partially self-funded health benefits plan (the plan). It contracted with MSA, a third-party administrator for employee health plans, to make all decisions regarding coverage for individuals covered under the plan. MSA's decision-making power was based exclusively on the language provided in the plan, and it was not given a discretionary function. Since 1989, three different versions of the plan have been in existence. The initial plan contained an exclusion from coverage for "[tlreatment or services due to accidents which are COVERED UNDER WORKERS COMPENSATION or similar legislation, or for any accident or illness which occurs while engaged in an occupation for wage or profit with any employer." Every time the City of Powell adopted a new plan, it gave a new employee benefits booklet to each employee. The City of Powell adopted a new plan in 1996 which likewise contained an exclusion from coverage for:

2. Expenses for or in connection with any Injury or Illness which arises out of or in the course of any occupation for wage or profit or for which the Covered Person would be entitled to compensation under any Worker's Compensation Law or occupational disease law or similar legislation.

[14] Yet again, the City of Powell adopted a new plan in 1998. As had occurred in the past, it distributed an employee benefits booklet to all employees. Mrs. Bus-boom certainly was aware of the new plan because, as part of her employment duties, she witnessed the mayor's signature on the adoption of the new plan. The new plan specified that injuries incurred in connection with self-employment were exeluded from coverage as being work-related and, therefore, would not cover:

2. Expenses for or in connection with any Injury or Illness which arises out of or in the course of any occupation for wage or profit (including self-employment) or for which the Covered Person would be entitled to compensation under any Worker's Compensation Law or occupational disease law or similar legislation.

The only difference between this version and the previous version was the addition of the parenthetical language which specifically referenced self-employment.

[T5] At all times material to this cause of action, Mr. Busboom was a self-employed contractor. In 1989, 1995, and 1997, Mr. Busboom, a covered dependent, suffered three work-related injuries for which he submitted claims under his wife's plan. The previous claims administrator approved his 1989 claim for work-related benefits as M.S.A. § had not yet been retained. There are no facts in the record to explain on what basis the claims administrator provided coverage to Mr. Busboom for that work-related claim. However, the last two times he was injured, a box on the claim forms was checked which indicated his injuries were not work-related. The record confirms the medical providers erroneously completed and submitted the forms and the Busbooms did not see or have an opportunity to change the checked box on the forms. Based upon those forms, M.S.A. § approved both claims for benefits.

[16] In 1998, Mr. Busboom suffered another serious injury in the course of his self-employment. On this occasion, M.S.A. § received accurate information that the injury was work-related and denied Mr. Busboom's claim for benefits pursuant to the clear language in the plan. The Busbooms appealed the decision to M.S.A. § to no avail. On May 31, 2000, the Busbooms filed a complaint in the district court against the City of Powell asserting promissory estoppel and a violation of the duty of good faith and fair dealing. They also sought attorney fees. The City of Powell moved for a summary judgment. The district court granted a summary judgment in favor of the City of Powell on the duty-of-good-faith-and-fair-dealing claim, which the Busbooms did not appeal, and both parties stipulated to the dismissal with prejudice of the claim for relief requesting attorney fees. The district court granted a summary judgment in favor of the Busbooms, the nonmov-ing party, on the grounds of promissory es-toppel. See Leithead v. American Colloid Company, 721 P.2d 1059, 1064 (Wyo.1986) (recognizing the district court can a grant summary judgment to a nonmoving party). The City of Powell appealed.

STANDARD OF REVIEW

[17] Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 10, 25 P.3d 511, ¶ 10 (Wyo.2001); see also W.R.C.P. 56(c). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. Williams Gas Processing-Wamsutter Company v. Union Pacific Resources Company, 2001 WY 57, ¶ 11, 25 P.3d 1064, ¶ 11 (Wyo.2001). We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. Id. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. - Scherer Construction, LLC v. Hedquist Construction, Inc., 2001 WY 23, ¶ 15, 18 P.3d 645, ¶ 15 (Wyo.2001). We do not accord any deference to the district court's decisions on issues of law. Id.

DISCUSSION

[T8] Relying on the doctrine of promissory estoppel, the Busbooms argue the previous payments of work-related claims estop the City of Powell from denying coverage for Mr. Busboom's injuries. To succeed on a promissory estoppel claim, a claimant must show

(1) the existence of a clear and definite promise which the promisor should reasonably expect to induce action by the promis-ee; (2) proof that the promisee acted to its detriment in reasonable reliance on the promise; and (8) a finding that injustice can be avoided only if the court enforces the promise.

Roussalis v. Wyoming Medical Center, Inc., 4 P.3d 209, 253 (Wyo.2000). The party who is asserting promissory estoppel has the burden of establishing each element of the doe-trine under a strict proof standard. Id. Whether elements one and two exist are questions for the finder of fact. Id. Whether element three exists is decided as a matter of law by the court. Id.

Existence of a Clear and Definite Promise

[19] The Busbooms assert a clear and definite promise was formed through the City of Powell's prior approval of three different claims for injuries that occurred in the course of Mr. Busboom's self-employment. They contend this prior conduct resulted in an affirmative representation that future injuries arising in the course of his self-employment would be covered under the plan. According to the Busbooms, the City of Powell should have reasonably expected that the payments made on separate occasions would induce forbearance on their part; ie., they did not purchase additional insurance to adequately protect Mr. Busboom.

[110] The existence of a clear and definite promise is a fundamental element of promissory estoppel. A promise has been defined as a manifestation of intention to act or to refrain from acting in a specified way made so as to justify a promisee in understanding that a commitment has been made. Restatement (Second) of Contracts § 2(1) (1981); see also 1 Richard A. Lord, Williston on Contracts § 1:2 (4th ed.1990); 28 Am. Jur2d Estoppel and Waiver § 55 (2000). "Drawing heavily from the Restatement's definition of promise, it has been suggested that '[a]l promise may be stated in words, either orally or in writing, or may be inferred wholly or partly from conduct.... Both language and conduct are to be understood in the light of the circumstances.'" State Bank of Standish v. Curry, 442 Mich. 76, 500 N.W.2d 104, 108 (1993) (quoting Farber & Matheson, Beyond promissory - estoppel: Contract law and the "Invisible Handshake," 52 U. Chi. L.Rev. 903, 932 and n. 104 (1985)). This court has held promissory estoppel provides relief for an " 'injury arising from actions or declarations which have been acted on in good faith and which would 'be inequitable to permit a party to retract.'" Davis v. Davis, 855 P.2d 342, 347-48 (Wyo.1993) (quoting Jankovsky v. Halladay Motors, 482 P.2d 129, 132 (Wyo.1971)) (emphasis added); see also Worley v. Wyoming Bottling Company, Inc., 1 P.3d 615, 623 (Wyo.2000). However, conduct that is not specifically demonstrative of an intention respecting future conduct cannot serve as a foundation for a clear and definite promise. State Bank of Standish, 500 N.W.2d at 108.

[T11]l The Busbooms correctly recognize that our promissory estoppel jurisprudence has been primarily focused in the employment realm. However, in Doctors' Company v. Insurance Corporation of America, 864 P.2d 1018 (Wyo.1993), we embraced the application of the promissory estoppel doctrine to instances involving insurance contracts. In that case, the insured successfully asserted promissory estoppel to preclude an insurer from denying coverage when the insurer's retroactive coverage, without express exclusionary language, was an affirmative representation that coverage would be provided for the potential claim at issue. The insured, a doctor, specifically informed the insurer in his application for insurance coverage of the cireumstances surrounding a potential medical malpractice claim that could arise. The insurer responded by issuing a policy with retroactive coverage and, in doing so, failed to expressly exclude coverage for the potential claim. 864 P.2d at 1029-80. That case is easily distinguishable from the instant case wherein the plan specifically includes express exclusionary language for work-related injuries and inaccurate information was provided to M.S.A. § regarding the claims upon which it relied to authorize payments. In Doctors' Company, we explained that, if an unambiguous promise is made in cireumstances caleu-lated to induce reliance and the promise does so, the promisee may recover damages. 864 P.2d at 1029. The requirement that the promise be calculated to induce reliance is the death knell of the Busbooms' argument.

[T12] The evidence fails to establish the City of Powell made a clear and definite promise calculated to induce reliance. A determination of whether a clear and definite promise exists requires inquiry into the circumstances surrounding the making of the asserted promise. State Bank of Standish, 500 N.W.2d at 108-09. The record verifies the City of Powell, through its agent, was under the mistaken belief that Mr. Bus-boom's injuries were not work-related based upon the submitted claim forms. When Mrs. Busboom was asked whether she knew of any information or evidence which would have alerted M.S.A. $ that Mr. Busboom's previous injuries were work-related, she replied "no." Nothing in the record indicates the City of Powell should have reasonably known the claims in the past actually involved payment for work-related injuries. The Busbooms imply the City of Powell, through its agent, should have investigated further to determine whether the information provided was accurate. However, they do not direct this court to any authority for the proposition that an insurer has the duty to investigate all information provided to it pri- or to paying a claim and, if it does not, it is bound to pay future claims which are expressly excluded under the terms of the insurance contract. "Where the conduct or representation of the party sought to be es-topped is due to ignorance founded upon an innocent mistake, no estoppel will arise." 28 Am.Jur.2d Estoppel and Waiver § 48 at 477 (2000). Therefore, given the City of Powell's lack of knowledge as a result of a mistake, it could not have calculated to induce the Busbooms to rely on past payments to assure all future claims clearly excluded from coverage would be paid. The mere expectan-ey of a continued course of conduct is not enough to fall within the umbrella of the promissory estoppel doctrine, even in situations where the disappointment of expectations results in a heavy financial loss. Tauber v. Jacobson, 293 A.2d 861, 867 (D.C.Cir.1972).

[113] Furthermore, the Busbooms disregard the import of the language in the plan which unambiguously excludes self-employment-related injuries. The City of Powell cannot be forever bound by erroneously providing coverage in the past based solely on another's mistake. This is especially true considering the City of Powell exercised its right to revise the plan by inserting very specific exclusionary language for self-employment-related injuries. Therefore, even if the City of Powell's prior conduct arguably could have induced reliance, that conduct must be viewed in light of all the circumstances including the amendment to the plan which unequivocally referenced self-employment and was in effect at the time of Mr. Busboom's 1998 injury.

[114] Finally, the Busbooms rely on various statements and conversations that occurred between Mrs. Busboom and City of Powell employees to reinforce and support the nature of the clear and definite promise. However, the Busbooms concede these statements and conversations alone cannot establish a clear and definite promise. Moreover, the conversations with the city employees occurred after Mr. Busboom was injured and were nothing more than sympathetic words of support from co-workers. Therefore, they cannot form the basis of a clear and definite promise made before the injury occurred which is sufficient to overcome the effect of an express exclusion in the plan.

[115] We conclude, as a matter of law, there is no support in the record for a finding of a clear and definite promise calculated to induce reliance. Given this holding, the first criteria of the Busbooms' promissory estop-pel claim has not been satisfied. Failure to satisfy one element defeats a promissory es-toppel elaim; therefore, we do not need to consider the two remaining elements. Hulse v. First Interstate Bank of Commerce-Gillette, 994 P.2d 957, 959 (Wyo.2000).

[116] We recognize our holding may impose a financial hardship on the Busbooms. However, we cannot let our sympathy for their cireumstances govern our decision as a matter of law. In the summary judgment context, we generally either affirm the district court's order or reverse and remand for further proceedings. Leithead, 721 P.2d at 1063. However, there are certain instances, such as in this case, in which we reverse and remand with instructions to the district court to enter summary judgment in favor of the unsuccessful party. 721 P.2d at 1068-64. We hold that entry of a summary judgment in favor of the City of Powell is appropriate.

[117] Reversed and remanded.

      . This section falls generally under the theory of equitable estoppel. However, we cannot perceive any countervailing arguments why it should not equally apply in the context of promissory estoppel as both theories are founded on concepts of equity.

      . A provision in the plan permitted it to be amended at any time.


text:
    2002 WY 57
    Dominic ALCARAZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-33.
    Supreme Court of Wyoming.
    April 12, 2002.

      Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General, Representing Ap-pellee.

      Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] Dominic Alcaraz stole money from his employer and was convicted of felony larceny. The district court ordered him to pay $5,617.35 in restitution to compensate the employer for the total cost of a surveillance system which was installed to investigate the thefts. Mr. Alcaraz appealed claiming the district court abused its discretion by ordering him to pay for the entire system. We agree and reverse and remand for a determination of what portion of the total cost of the system can reasonably be required as restitution when the standard herein set forth is applied.

ISSUES

[T2] Mr. Alcaraz presents the following issue for our review: "Whether the trial court abused its discretion when it ordered [Mr.] Alcaraz to pay for the surveillance camera equipment and costs of installation used to detect his crime?" The State of Wyoming rephrases the issue as: "Whether the district court abused its discretion in ordering restitution?" In his reply brief, Mr. Alcaraz states an additional issue: "Whether [the state] has failed to respond to all of [Mr. Alcaraz's] arguments which would require reversal of the restitution order?"

FACTS

[13] The facts establishing Mr. Alcaraz's criminal conduct are not in dispute. Mr. Alcaraz worked for Mr. D's Food Center, a grocery store in Lander, and was in charge of cleaning the floors at night while the store was closed. On May 1, 2000, Mr. Alcaraz was at work when he opened a drawer and stole approximately $300 from the store's safe room. On May 20, 2000, he stole approximately $400 from a desk drawer in the customer service area. The store owner became suspicious and installed surveillance equipment in the customer service area. On June 23, 2000, the owner placed $600 in marked bills in a bank bag on a desk in that area of the store. The following morning, the surveillance cameras showed Mr. Alcaraz stealing $300 from the bank bag. The next night, the owner again placed marked money in a bank bag in a desk in the same area of the store. The Lander Police Department operated the surveillance equipment that night and recorded Mr. Alcaraz removing money from the bank bag. An officer subsequently found $240 in marked money in Mr. Alcaraz's front pocket, and he arrested Mr. Alcaraz.

[14] Mr. Alcaraz pleaded guilty to felony larceny under Wyo. Stat. Ann. § 6-3-402(a) and (c)(i) (LexisNexis 2001). The district court sentenced him to a prison term of not less than two years nor more than four years. It suspended the prison sentence and placed Mr. Alcaraz on supervised probation, ordering him to serve six months of jail time on weekends to be completed within three years. The district court also ordered him to pay $100 to the crime victims compensation fand and $5,617.35 in restitution to compensate the store owner for the total cost of the surveillance equipment as well as installation. Mr. Alcaraz appealed.

STANDARD OF REVIEW

[T 51

Appellate review of ordered restitution is confined to a search for procedural error or a clear abuse of discretion. The amount of restitution fixed by the trial court should be supported by evidence sufficient to afford a reasonable basis for estimating the loss. A challenge to the amount of restitution set by the court must demonstrate an abuse of discretion. "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 cireumstances and without doing so arbitrarily or capriciously." Brock v. State, 967 P.2d 26, 27 (Wyo.1998) (quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)).

Stowe v. State, 10 P.3d 551, 553 (Wyo.2000) (some citations omitted).

DISCUSSION

[T6] Mr. Alcaraz contends the district court improperly ordered him to pay restitution for the total cost of the surveillance equipment the store owner installed to determine who was stealing money from the store. In Wyoming, restitution is authorized by Wyo. Stat. Ann. § 7-9-102 (LexisNexis 2001), which reads:

In addition to any other punishment pre-seribed by law the court shall, upon conviction for any misdemeanor or felony, order a defendant to pay restitution to each victim as determined under W.S. 7-9-103 and -9-114 unless the court specifically finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay.

[T7] A sentencing judge is authorized in a criminal case to order a defendant convict, ed of a crime to pay to the victim of his erime actual pecuniary damages suffered by that victim as a result of the defendant's criminal activity. Wyo. Stat. Aun. § 7-9-108(b) (Lex-isNexis 2001). For purposes of restitution, "pecuniary damage" includes all damages "a victim could recover against the defendant in a civil action arising out of the same facts or event." Wyo. Stat, Ann. § 7-9-101(a)@iii) (LexisNexis 2001). Mr. Alcaraz does not argue the district court was unauthorized to order restitution; rather, he questions whether the total cost of the surveillance equipment and its installation are pecuniary damages resulting from his criminal activity; i.e., could the store owner recover the cost of the surveillance equipment in a civil action.

[T8] Neither party suggested a civil cause of action which could arise out of the same facts under which the store owner could recover against Mr. Alcaraz. However, we note the most closely applicable cause of action would be conversion. We have defined conversion as any distinct act of dominion wrongfully executed over one's property in denial of his right or inconsistent with it. Cross v. Berg Lumber Company, 7 P.3d 922, 929 (Wyo.2000). In essence, " '[clonversion occurs when a person treats another's property as his own denying the true owner the benefits and rights of ownership. " Id. (quoting Ferguson v. Coronado Oil Company, 884 P.2d 971, 975 (Wyo.1994)). In order to establish a cause of action in conversion, a plaintiff must show that:

"(1) he had legal title to the converted property; (2) he either had possession of the property or the right to possess it at the time of the conversion; (8) the defendant exercised dominion over the property in a manner which denied the plaintiff his rights to use and enjoy the property; (4) in those cases where the defendants lawfully, or at least without fault, obtained possession of the property, the plaintiff made some demand for the property's return which the defendant refused; and (5) the plaintiff has suffered damage by the loss of the property."

Id. at 929-30 (quoting Marchant v. Cook, 967 P.2d 551, 556 (Wyo.1998)). The proper measure of damages for conversion of property is the actual value of the property converted and may include reasonable expenses incurred in an effort to recover possession of the property. In Cross, 7 P.3d at 932, we held recovery costs are a species of special damages and upheld an award of special damages for the cost of numerous attempts to retrieve a converted road grader including the hiring of an airplane to search for the grader. Although Mr. Alcaraz paid back the amount of cash he stole, the store owner could recover special damages.

When a conversion occurs, the injured party should receive full compensation for his actual losses. The damages in an action for conversion are measured by the sum of money necessary to compensate the plaintiff for all actual losses or injuries sustained as a natural and proximate result of the defendant's wrong. Special damages may be recovered in an action for conversion for any injury proximately resulting from the conversion.

18 Am.Jur.2d Conversion § 117 at 230-31 (1985); see also Restatement (Second) of Torts § 927(2)(b) (1979) (damages may in-elude the amount of any further pecuniary loss of which the deprivation has been a legal cause). Compensation for time and money spent in pursuit of the property may be recovered as special damages. 18 Am.Jur.2d Conversion § 117 (1985).

{19] To justify restitution for the surveillance system costs, Mr. Alcaraz's criminal conduct must have been a proximate cause of the store owner's purchasing the surveillance equipment. We have identified legal causation as conduct which is a substantial factor in bringing about the injuries set out in the complaint. Buckley v. Bell, 703 P.2d 1089, 1091 (Wyo.1985). If, however, the conduct created only a condition or occasion for the harm to occur, it would be regarded as a remote, not a proximate, cause and would not be a substantial factor in bringing about the harm. Id. at 1092.

[T10] We have considered causation in the context of restitution in two cases. In Fales v. State, 908 P.2d 404, 412 (Wyo.1995), Ms. Fales was ordered to pay $11,532.04 in restitution for damages sustained when one of her cohorts stole a van. Ms. Fales took a ride in the van; however, she was not charged with any erime linked to the van, nor did she admit having anything to do with its theft or destruction. 908 P.2d at 412. Instead, Ms. Fales was charged with accessory before the fact to burglary and of burglary for her involvement in a crime spree at the local junior high school and the high school. Id. at 407. We determined the prerequisite of a sufficient relationship between Ms. Fa-leg' criminal activity and the damage to the van did not exist and, therefore, the restitution order was improper. Id. at 418.

[T11] In Dreiman v. State, 825 P.2d 758 (Wyo.1992), we held the district court properly ordered Mr. Dreiman to pay restitution for the costs the victim incurred to change her locks which she did because he continually telephoned and contacted her. We held Mr. Dreiman's admitted harassment was a substantial factor in causing the victim to purchase the new locks.

[112] Costs related to surveillance equipment were allowed as restitution in a case involving burglary in State v. Smith, 119 Wash.2d 385, 831 P.2d 1082 (1992) (en bane). There, Mr. Smith burglarized a bank and tripped three surveillance cameras which

then photographed different areas of the bank. The bank incurred costs for the use of technicians who worked on the cameras and for the development and replacement of the film. 831 P.2d at 1083. The court ordered Mr. Smith to pay restitution to the bank for those costs. The applicable statute required in pertinent part: " 'Restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property' " Id. at 1084 (quoting former RCW 9.94A.142(1)). The Washington Supreme Court held the funds spent by the bank were "property" that was lost as a direct result of the crime and, therefore, the award of restitution was proper. Id. In that situation, Mr. Smith's criminal conduct-burglary-was a proximate cause of the costs incurred to investigate the crime.

[113] In this case, the district court found a sufficient relationship between Mr. Alcaraz's criminal conduct and the store owner's purchase of the surveillance equipment. The store owner testified that, had Mr. Alearaz not been stealing, the store would not have purchased the surveillance equipment. While we defer to the district court's finding of fact concerning proximate cause, its decision to award the total cost of the surveillance system disregards the fact that the benefits of the surveillance equipment will inure to the store owner long after the equipment was used to apprehend Mr. Alcaraz.

[¥14] "The stated goal of the damages remedy is compensation of the plaintiff for legally recognized losses." Dan B. Dobbs, Dobbs Law of Remedies ch. 3, § 3.1 at 281 (2d ed.1993). This means the store owner should be fully indemnified for his loss but he should not receive a windfall. Id. The store owner admitted the surveillance equipment would be used after the individual stealing money was apprehended and its continued benefit was another reason why he purchased the equipment. - Overcompensation is undesirable not only because it is unjust but also because it provides the wrong incentives to both parties. Id. at § 3.3(7).

[T15] The goal in awarding damages is to make the injured party whole to the extent that it is possible to measure an injury in terms of money. 22 Am.Jur.2d Damages § 26 (1988). This occurs when the victim is in the same financial position he would have been in had the wrong not been committed. Id. We have said, "In computing damages, 'the primary objective [is] to determine the amount of loss, applying whatever rule is best suited to that purpose." " Cross, 7 P.8d at 983 (quoting O's Gold Seed Company v. United Agri-Products Financial Services, Inc., 761 P.2d 673, 676 (Wyo.1988)).

[¥161 The store owner could not have recovered the full cost of the entire system from Mr. Alcaraz in a civil action and, therefore, cannot be awarded that amount as restitution. The store owner incurred certain costs in recovering the stolen money including the purchase price of the surveillance equipment. However, that total purchase price must be reduced in consideration of the value the system will provide to the store owner over its useful life. The law will not put a victim in a better position than he would have been in had the wrong not been done. 22 Am.Jur.2d Damages § 27 (1988). The measurement of loss is not an exact science. Under these circumstances, the district court should allocate to Mr. Alcaraz a reasonable proportion of the cost of the purchase and operation of the surveillance equipment used to apprehend him, considering all factors including the equipment's expected useful life and depreciation. We conclude the district court abused its discretion in ordering the entire purchase price of the equipment as restitution and remand for an evidentiary determination of the proper amount under the standard herein set forth.

[T 17] Reversed and remanded.

      . The victim requested $5,614.95 in restitution for the surveillance equipment. Both parties agree the additional $2.40 ordered by the district court was a mistake.


text:
    2002 WY 60
    Glenda H. MATLACK, Appellant (Defendant/Counterclaim Plaintiff), v. MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY, a Wyoming corporation, Appellee (Plaintiff/Counterclaim Defendant).
    No. 01-42.
    Supreme Court of Wyoming.
    April 15, 2002.

      C. John Cotton, Gillette, WY, Representing Appellant.
    S8.B. Freeman, III of Bormuth & Freeman, LC, Cody, WY, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] Glenda Matlack sold land adjoining her home to Susan Moore, and a dispute over the ownership of a water well on the boundary between their properties resulted. Ms. Moore took matters into her own hands and pulled the well casing onto her property, thereby damaging Ms. Matlack's property. When Ms. Matlack sued, Ms. Moore made a claim under her homeowner's insurance policy. Ms. Moore's insurer refused coverage for her intentional acts. Ultimately, the two neighbors settled their dispute by assigning Ms. Moore's claims against her insurer to Ms. Matlack. The trial court granted summary judgment for the insurer on the breach-of-contract and bad faith claims because the policy provided no coverage for intentional acts. We affirm.

ISSUES

[T2] Ms. Matlack presents the following issues for our review:

Issue No. 1: Did the lower court err in holding that there was no duty to defend the Original Complaint, which included claims for trespass, wrongful damage to
personal property and real property, and negligent infliction of emotional distress?
Issue No. 2; Did the lower court err in holding that, as a matter of law, the conduct of the insured was intentional, and that there was no occurrence under the policy?
Issue No. 3: Did the lower court err in holding that there was no duty to defend the Amended Complaint?
Issue No. 4; Did the lower court err in its determination regarding bad faith?

Mountain West Farm Bureau Mutual Insurance Company phrases the issues as:

1. Whether the District Court erred in determining that the insurance policy did not provide coverage for the judgment entered by the District Court in accordance with the stipulated agreement of the parties in the underlying case?
2. Whether the District Court erred in its determination that the Appellee did not breach its duty to defend the original complaint filed in the underlying case?
3. Whether the District Court erred in its determination that the Appellee did not breach its duty to defend the amended complaint filed in the underlying case?
4. Whether the District Court erred in its determination that the Appellee did not breach its covenant of good faith and fair dealing to its insured?

In her reply brief, Ms. Matlack sets out these additional issues:

Issue No. 1: Do allegations and/or findings of punitive damages automatically invoke the intentional act exelusion?
Issue No. 2; Given the record in this case, is MWFB's position regarding the duty to defend and coverage contrary to Wyoming law?
Issue No. 3: Does MWFB concede the application of INA v. Spangler, 881 F.Supp. 539 (D.Wyo.1995)?

FACTS

[T8] In 1994, Ms. Matlack sold to Ms. Moore one of two tracts she owned in a subdivision in Campbell County. At the time of the sale, one common water well located "almost precisely" on the boundary served both tracts. The parties agreed to share in the maintenance and operational costs of the well. Neither the agreement nor the warranty deed mentioned conveyance of the well to Ms. Moore. After the sale, the parties began haggling over ownership and operation of the well. Both parties sought to drag the state engineer's office into the fray which resulted in each of them receiving a certificate of title from that office at different times. After becoming aware of the parties' dispute, the state engineer's office bowed out claiming it was a civil matter to be resolved by the courts. Negotiations between the parties ensued with both parties being represented by counsel. Ms. Moore ultimately notified Ms. Matlack of her intent to physically hook on to the well casing and pull it onto her own property. Not surprisingly, Ms. Matlack responded by denying Ms. Moore permission to trespass onto her property to accomplish the task. Undaunted by her neighbor's position, Ms. Moore plowed ahead, started up her backhoe, dug out around the well, hooked on to the casing, and pulled it in her direction. None of these facts were disputed.

[14] Ms. Matlack alleged damages including disconnection of her home from the well, damage to the integrity of the well casing, the cost of drilling a replacement well, and emotional distress. She filed the predictable complaint claiming trespass, wrongful damage to and or conversion of personal property, wrongful taking of and or damage to real property, negligent infliction of emotion distress, intentional infliction of emotional distress, civil conspiracy, and punitive damages. Ms. Moore, faced with the consequences of her action, tendered the matter to her insurance carrier, Mountain West Farm Bureau Mutual Insurance Company (Mountain West), under her homeowner's policy. Mountain West responded within days of receiving the claim by denying both coverage and any duty to defend under the cireumstances alleged in the complaint which in its opinion constituted intentional acts. Eight and a half months later, Ms. Matlack amended her complaint by adding a cause of action entitled "negligence," relying on the exact same facts. The trial court issued a decision letter granting summary judgment in Ms. Moore's favor on all claims except negligence, trespass, and punitive damages. Ms. Moore's counsel provided the amended complaint, the summary judgment decision letter, and a letter from Ms. Mat-lack's attorney offering to settle for the $100,000 policy limits to the insurer. Mountain West claimed it did not receive the information for several months. Upon review of the amended complaint, which now claimed negligence, Mountain West agreed to provide a defense but reserved its right to claim no coverage existed for damage cause by Ms. Moore's intentional acts. Facing trial on the remaining claims, Ms. Moore and Ms. Matlack settled their differences by stipulating to a judgment against Ms. Moore for $110,678.11, which included $19,768.95 for punitive damages, an assignment to Ms. Mat-lack of Ms. Moore's rights and claims against her insurer, and an agreement the judgment would only be satisfied through any recovery from the insurer.

[T5] Mountain West filed a declaratory judgment action against Ms. Matlack, seeking a determination that the policy did not provide coverage for the stipulated damages. Ms. Matlack counterclaimed for breach of contract for failure to defend and provide coverage and for insurance bad faith. The trial count granted summary judgment in favor of Mountain West on coverage and all of Ms. Matlack's counterclaims. Ms. Matlack appealed.

STANDARD OF REVIEW

[T 6]

Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which has been asserted by the parties. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. We do not accord any deference to the district court's decisions on issues of law.

Baker v. Pena, 2001 WY 122, ¶ 6, 36 P.3d 602, 1 6 (Wyo.2001) (citations omitted).

DISCUSSION

[T7] The fundamental question presented in this appeal is whether the insurance policy issued by Mountain West to Ms. Moore provided coverage for damages resulting from these intentional acts. Section II of the policy describes the terms under which Mountain West contracted to provide coverage. Those terms unambiguously state Mountain West will pay up to the limit of liability in the policy for any property or bodily injury damages the insured is legally liable for as a result of an "occurrence" caused by the insured. The specific language of the policy provides in part:

COVERAGE F-Liability
If a claim is made or suit is brought against any insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the insured is legally liable;
COVERAGE M-Damage to Property of Others
We will pay for property damage to property of others caused by an insured, at replacement cost, up to $500 for any one occurrence.

By the clear language of the policy, coverage is limited to damages from an "occurrence." As set out in the definitions in the policy:

Occurrence means an unexpected and unintended accident, including continuous or repeated exposure to conditions, which result in bodily injury or property damage during the policy period. All bodily injury or property damage resulting from a common cause shall be considered the result of one occurrence.

In addition to the clear terms limiting coverage to accidents, the policy specifically excluded coverage for intentional acts, actions arising out of an insured's violation of a criminal law, and punitive damages.

[T8] We have found similar language unambiguous and discussed the definition of "accident" in this context. In Reisig v. Union Insurance Company, 870 P.2d 1066, 1069-70 (Wyo.1994), we stated:

In determining the question of whether the intentional tort of conversion can be considered an "accident," we look only to the allegations of the Complaint filed by Rocky Mountain to see if there is alleged a loss "caused by an 'occurrence' " as required by the CGL policy, which incorporates the term "accident" in defining "occurrence." We previously have defined "accident" in this way:
The word may be defined as meaning a fortuitous cireumstance, event, or happening, an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the cireumstances is unusual and unexpected by the person to whom it happens; an unusual, fortuitous, unexpected, unforeseen or unlooked for event, happening or occurrence; chance or contingency; fortune; mishap; some sudden and unexpected event taking place without expectation, upon the instant, rather than something which continues, progresses or develops....
Wright v. Wyoming State Training Sch., 71 Wyo. 173, 255 P.2d 211, 218 (1953).

[T9] It cannot be seriously argued Ms. Moore's action of hooking on to the well casing and pulling it toward her property, thereby causing damage, was accidental. In an attempt to put as good a light as possible on her actions, she claims she mistakenly believed she had a right to do so. That artful dodging is likewise unpersuasive. At the time, she was embroiled in negotiations with Ms. Matlack through counsel and fully aware of her neighbor's competing claim to the well. In fact, Ms. Matlack made it abundantly clear Ms. Moore's actions would be considered a trespass.

[T10] In Reisig, the contractor charged with conversion for taking and selling equipment in which a lender held a security interest made a similar argument claiming he was unaware of the lender's right to the equipment. In that case, we found no duty to defend when the complaint alleged such intentional acts as were clearly excluded from the definition of "accident." That holding relied on our earlier precedent in First Wyoming Bank, N.A., Jackson Hole v. Continental Insurance Company, 860 P.2d 1094 (Wyo.1993), which likewise found a claim that relied upon breach of contract could not create a duty to defend on the insurer's part despite the fact the complaint contained a cause of action labeled "negligence." Our analysis must focus on the facts alleged in the complaint upon which the cause of action is founded, not on the label counsel applied to a particular cause of action. In First Wyoming Bank, the Robinsons and the Russells alleged the bank had agreed to make certain loans and later refused causing damages. Despite a claim for relief entitled "negligence," which alleged the bank acted negligently in making the representations regarding the loans, the obvious gravamen of the complaint was the bank's alleged failure to perform its contract with the Robinsons and the Russells. That breach of contract could not rationally be deemed an "occurrence" or "accident" within the unambiguous language of the insurance contract. Likewise, in this case, although counsel tried to craft the amended complaint to trigger coverage by adding a claim for relief entitled "negligence" claiming Ms. Moore negligently believed she owned the well, he could not avoid the obvious fact that Ms. Moore's actions were no accident. Ms. Matlack even admits in her brief that the amended complaint was "simply another method of stating what was stated in the original Complaint."

[111] As support for her argument that intentional acts based upon mistake are "occurrences" under the policy, Ms. Matlack relies upon Parker v. Hartford Fire Insurance Co., 222 Va. 33, 278 S.E.2d 803 (1981), and Lumber Insurance Companies, Inc. v. Allen, 820 F.Supp. 33 (D.N.H.1993), for the proposition that a trespass is an occurrence under the policy's language if no harm was intended. However, both cases involved unintentional trespasses where the insureds were completely unaware of the claims to the properties in question. Those facts bear no resemblance to this situation. In Parker, the insureds, whose deed contained no reference to a burial plot being reserved, began constructing a silo on the burial plot. Because the facts alleged in the complaint could support a judgment of an unintentional trespass which could be covered by the policy, the court found the insurer had a duty to defend the claim. Similarly, the insureds in Allen built a driveway under the mistaken belief they owned an easement allowing them to do so. Interpreting an insurance policy very similar to the one at issue in this case, the court found the meanings of "occurrence" and "accident" could potentially cover the insureds' unintentional trespass and, consequently, the insurer had a duty to defend. In determining whether the intentional act could constitute an accident, the Allen court cited a two-part test: (1) Was the act actually intended to cause the injury that resulted or (2) is the act so inherently injurious that it cannot be performed without causing the resulting injury? 820 F.Supp. at 34. The court concluded, if an insured mistakenly believes he has an owner's permission to enter the property, the first part of the test could be met in that no intent to cause injury would exist. It seems to follow that, if the insured mistakenly believes he owns the property, no injury would likewise be intended. However, that mistaken belief must have some basis in fact, and we believe it goes without saying that such belief must be held in good faith. A claim of mistaken belief cannot be sustained where parties are embroiled in an open and hostile dispute over ownership.

[112] Pursuant to the second part of the test, if an injury will certainly follow from the insured's conduct, his conduct will not be considered accidental even if he has no intention to injure. When this part of the test is applied to intentional but mistaken conduct, the issue becomes whether the facts support a belief that the conduct was authorized. If authorized conduct does not injure and the facts support a belief that the conduct was authorized, injury is not certain to follow from the insured's acts. Thus, an insured's intentional but mistaken trespass or conversion also will survive this part of the test if the insured's mistaken belief has a basis in fact because it cannot be said under such cireumstances that the insured's conduct will necessarily result in injury. 820 F.Supp. at 35. As an example, the court in Allen explained that an inadvertent straying across an unmarked property boundary to cut trees would constitute an accident while deciding to cut trees on property which is clearly marked with no trespassing signs would not. Id.

[113] We find this authority persuasive. It follows that, to conclude in this case coverage may have existed and, therefore, a duty to defend was created, we must find (1) a good faith belief by the insured that she was acting with authority or (2) a lack of inherent injury occurred from her actions. We can do neither. The undisputed facts are that the parties agreed to share the cost of operating the well; the warranty deed did not convey to Ms. Moore any rights to the well; after the sale was completed, Ms. Moore unilaterally sought and obtained a transfer of the well permit to her from the state engineer's office and removal of Ms. Matlack from the utility account servicing the well, and she began sending bills to Ms. Matlack for her use of water from the well; and, while the parties were in negotiations through counsel over their disputed rights to the well, Ms. Matlack informed Ms. Moore that, if she took any steps to pull the well onto her property, Ms. Matlack would consider her a criminal trespasser and yet Ms. Moore proceeded to do so anyway. Whether or not Ms. Moore actually believed she owned the well, she was fully aware her neighbor strenuously disputed that fact, and, depending on who ultimately was found to be correct, she knew she may be acting improperly. Those facts can hardly be considered as demonstrating a good faith belief she was acting with authority. Further, Ms. Moore's act of pulling the well casing, located "almost precisely" on the property boundary, toward her property necessarily damaged Ms. Mat-lack's property including disconnecting her home from the well and destroying her water supply. These facts, alleged in the complaint and undisputed by Ms. Moore, do not support an unintentional trespass intended to cause no harm.

[T14] Ms. Moore's stipulation to the entry of a judgment which included punitive damages deserves mention. This court has recognized that a trespasser who believes he is authorized to enter another's property but does so in the face of the owner's opposition or who should have known of the owner's claim to the property is subject to punitive damages. See Roberts Construction Company v. Vondriska, 547 P.2d 1171, 1180 (Wyo.1976), Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255, 274 (1925). In Holl, an oil company drilled on property it believed was covered by a lease, but the owner contended otherwise and made his position known. In that cireumstance, this court pointed out that, "though an entry is made upon real estate under a conviction that the right to do so exists, if it is in fact wrongful, and willfal injury is done to the plaintiff's property, the defendant will be liable for exemplary damages." 237 P. at 274. In this case, the parties stipulated to punitive damages demonstrating they agreed the actions were of a willful and wanton nature. There may well exist other situations in which an action justifying punitive damages can also be considered an accident, and we are not holding that, any time punitive damages are claimed or adjudged, no coverage or duty to defend exists. We do hold the particular facts of this case-an intentional trespass with full knowledge of disputed ownership-does not trigger coverage.

A. Duty to Defend

[115] Next, we are faced with the question of whether a duty to defend existed in this case even though coverage was clearly not available. Our jurisprudence has established an insurer's duty to defend is broader than its duty to provide coverage. Shoshone First Bank v. Pacific Employers Insurance Co., 2 P.3d 510, 518-14 (Wyo.2000).

The insurer is obligated to afford a defense as long as the alleged claim rationally falls within the policy coverage. The obligation to defend is an independent consideration in liability insurance, and it is invoked by any claim alleged in the complaint that is potentially covered under the policy.

Id. (citations omitted). The insurer in Shoshone First Bank assumed the duty to defend because a claim of invasion of privacy was made which could have potentially been considered a "personal injury" under the terms of the policy. If the policy potentially covers one or more claims, the insurer has a duty to defend all claims, and any doubts about coverage should be resolved against the insurer. Alm v. Hartford Fire Insurance Company, 369 P.2d 216, 219 (Wyo.1962).

[T16] Ms. Matlack argues that, unlike the situation in Reisig where we found no duty to defend because conversion could not constitute an "accident" as contemplated in an insurance policy very similar to the one at issue here, her complaint recites various causes of action so that, if her claim for trespass were not covered by the policy because it involved an intentional act, other claims would arguably give rise to a duty to defend. In Reisig, the complaint stated only one claim for conversion. A simple reading of Ms. Matlack's amended complaint exposes the flaw in her argument. All the causes of action rely upon the same facts the intention, al trespass. Simply because Ms. Matlack sought to denominate causes of action as "negligence" or "negligent infliction of emotional distress," the facts cannot be magically transformed and thereby create a duty to defend. This court rejected a similar argument in First Wyoming Bank, 860 P.2d 1094. There, the Robinsons and the Russells tried to transform a breach-of-contract ease into an insured claim by including a cause of action entitled "negligence." However, the underlying nature of the dispute was the bank's alleged failure to loan money to them as promised; e.g., a breach of contract. Those facts did not constitute an "occurrence" within the meaning of the policy, and, consequently, we found no duty to defend.

[¥17] To determine whether a claim is rationally covered by the terms of the policy, as we said in First Wyoming Bank, "we analyze the duty to defend by examining the facts alleged in the complaint." 860 P.2d at 1097. "Therefore, to determine Continental's duty to defend the Bank in the Robinson/Russell litigation, we examine the terms of Continental's policy and the allegations contained in the Robinson/Russell complaint." 860 P.2d at 1097-98. The court then reviewed the complaint and found, "Although there is a claim in the complaints labeled 'NEGLIGENCE,/ the facts in the complaint do not demonstrate alleged loss resulting from negligence or alleged loss 'eaused by an occurrence, but instead demonstrate alleged losses resulting from a breach of contract." 860 P.2d at 1099. Further, the opinion noted that misrepresentation could have been a possible claim under the facts alleged but the claim would have required proof of an intentional act and would not constitute an "accident" or "occurrence" within the meaning of the policy. 860 P.2d at 1100. Finding no duty to defend, the court went on to conclude no claim for bad faith refusal to acknowledge coverage existed because the issue of coverage was "fairly debatable," citing Darlow v. Farmers Insurance Exchange, 822 P.2d 820, 823 (Wyo.1991). 860 P.2d at 1101.

[118] We are faced with the same situation here. Ms. Moore's intentional acts, which she performed with full knowledge of the possibility the well belonged to her neighbor, could not rationally be covered by a policy which limited coverage to "occurrences" or "accidents" and excluded intentional acts by the insured. Consequently, Mountain West was justified in initially denying both coverage and a duty to defend. Ms. Matlack argues it is significant that Mountain West ultimately assumed the defense after the complaint was amended to include a claim entitled "negligence" and the trial court denied summary judgment on that claim. That argument proves the rule that "no good deed goes unpunished." - Still claiming no coverage existed, Mountain West, in an abundance of caution and most likely in fear of the slightest possibility a court might conclude there was a potential for coverage, offered to defend with a reservation of rights. The insurer's decision does not alter our conclusion that no coverage was triggered by the facts in the original complaint which remained unchanged in the amended complaint and no legal duty to defend arose.

B. Bad Faith

[T19] The trial court also granted summary judgment on the bad faith claim. In McCullough v. Golden Rule Insurance Co., 789 P.2d 855, 860 (Wyo.1990), we held the appropriate test for determining whether there was bad faith is the objective standard of whether the validity of the denied claim was not fairly debatable. To prove a claim for bad faith, a plaintiff must demonstrate (1) the absence of a reasonable basis for denying benefits of the policy and (2) the defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. 789 P.2d at 860. To satisfy the first essential component, an insured must show that a reasonable insurer under the cireumstances would not have acted as it did by denying or delaying payment of the claim. Darlow, 822 P.2d at 824. Even if a claim for benefits is fairly debatable, the insurer may breach the duty of good faith and fair dealing by the manner in which it investigates, handles, or denies a claim. State Farm Mutual Automobile Insurance Company v. Shrader, 882 P.2d 813, 828 (Wyo.1994). While an insured may state claims for breach of contract and breach of the duty of good faith and fair dealing; the insured does not need to prevail on the contract claim to pursue the bad faith claim. Id.

[120] The facts upon which Ms. Matlack relies to prove bad faith are not compelling. Obviously, the trial court and this court have rejected her claim that Mountain West wrongfully denied coverage and initially denied its duty to defend. The only remaining facts which allegedly show bad faith are Mountain West's prompt response to the first complaint, apparently indicating only cursory examination of the case; the delay in its response to the amended complaint, apparently showing it drug its heels; and the change in its position regarding its willingness to defend based upon the amended complaint that Ms. Matlack now admits was not substantively different from the first complaint. Reasonable minds could not differ as to whether, on the basis of these facts, Mountain West acted improperly in the investigation or the handling of the claim. Lewis v. Platt, 837 P.2d 91, 93 (Wyo.1992). Given the limited and transparent nature of these facts, the trial court was well justified in finding no dispute of material fact concerning bad faith.

CONCLUSION

[T21] No genuine issue as to any material fact existed regarding the fundamental issue in this case. All parties agree Ms. Moore intentionally and willfully trespassed onto Ms. Matlack's property despite the latter's protestations and in the midst of their negotiations over ownership of the well. Such action cannot constitute an occurrence under the unambiguous language of the policy as a matter of law. The trial court was correct in granting summary judgment in favor of Mountain West on all claims.

[122] Affirmed.

      . The ultimate issue in Shoshone First Bank was whether the costs of defense could be apportioned between covered claims and those not covered, which issue is not relevant to the issue before us in this case.

      . Despite discussion by both parties of Insurance Company of North America v. Spangler, 881 F.Supp. 539 (D.Wyo.1995), its rationale is not relevant to the issues in this case. There, the court found coverage did exist; the insurer did assume the defense of the claim and was simply disputing whether the parties' settlement agreement complied with the terms of the policy.