author: KITE, Justice.

text:
    2003 WY 48
    CORDERO MINING COMPANY, a Delaware corporation; Transcontinental Insurance Company, a New York corporation; and Continental Casualty Company, an Illinois corporation, Appellants (Plaintiffs), v. UNITED STATES FIDELITY AND GUARANTEE INSURANCE COMPANY, a Minnesota company; and The Barlow Agency, a Wyoming corporation, Appellees (Defendants).
    No. 02-72.
    Supreme Court of Wyoming.
    April 15, 2008.

      Jeffrey S. Wittebort of Walberg, Dagner & Tucker, P.C., Centennial, Colorado; and Paul Kapp, Cheyenne, Wyoming, Representing Appellants.
    Judith Studer of Schwartz, Bon, Walker & Studer, Casper, Wyoming, Representing Ap-pellee United States Fidelity and Guarantee Insurance Company.
    Timothy W. Miller of Reeves & Miller, Casper, Wyoming, Representing Appellee The Barlow Agency.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] Cordero Mining Company (Corde-ro), a subsidiary of Kennecott Energy Company (Kennecott), contracted for work to be done at its mine in Campbell County. The general contractor and subcontractor were required to procure insurance naming Corde-ro as an additional insured. However, the subcontractor's policy failed to do so. After settling claims made against Cordero by an injured worker, the general contractor's insurer, Transcontinental Insurance Company and Continental Casualty Company (together CNA), and Cordero filed claims against the subcontractor's insurer, United States Fidelity and Guarantee Insurance Company (USF & ), and its agent, The Barlow Agency (Barlow), including claims for reformation of the insurance policy, negligence in failing to name Cordero, and breach of contract on the basis that Cordero was an intended third-party beneficiary. The district court granted summary judgment for USF & G and Barlow as to all claims. We affirm the summary judgment but on different grounds than those relied upon by the district court.

ISSUES

[T2] From the parties lengthy statements of the issues, we find the following issues determinative:

1. Whether Cordero was an intended third-party beneficiary of, first, Barlow's promise to procure insurance for the subcontractor from USF & G and, second, the insurance policy issued to the subcontractor by USF & G; and
2. Whether the subcontractor's acceptance of the policy naming Kennecott as an additional insured defeats the third-party beneficiary and negligence claims.

FACTS

[13] Cordero contracted with the general contractor, Production Industries Corporation (PICOR), in February of 1997 for construction of a coal loading system for the Rojo mine in Campbell County. The Corde-ro-PICOR contract required PICOR to obtain insurance naming the "Company Group" as an additional insured. The "Company Group" is defined in the contract as including Cordero, Kennecott, and each of their respective subsidiaries. PICOR obtained insurance from CNA in April of 1997 naming Cordero as an additional insured.

[T4] The Cordero-PICOR contract also required PICOR to ensure that all subcontractors hired to perform work on the project obtained insurance coverage naming the Company Group as an additional insured. By purchase order dated March 3, 1997, PI-COR subcontracted with L & T Fabrication & Construction, Ine. (L & T) to construct platforms for the coal loading system. The PICOR-L & T purchase order required L & T to obtain insurance naming PICOR and Cordero as additional insureds. In an attempt to comply with the purchase order, L & T procured insurance from USF & G through Barlow. The certificates issued by USF & G, dated March 19 and 21, 1997, respectively, named PICOR and Kennecott-but not Cordero-as additional insureds.

[15] L & T understood its contract with PICOR required it to procure insurance naming Cordero as an additional insured and knew the certificate it received from Barlow named Kennecott rather than Cordero as an additional insured. Yet L & T accepted the certificate as written and transmitted it to PICOR. No one contacted L & T or Barlow at the time the certificate was issued concerning the failure to name Cordero as an additional insured. It was not until L & T employee Shayne DeGaugh was seriously injured when a co-worker dropped a steel handrail on his head in August of 1997, approximately four months after the insurance certificate was issued, that Cordero contacted L & T concerning the failure to name it as an additional insured on the certificate.

[16] After the accident, Mr. DeGaugh filed a negligence claim against Cordero and PICOR. They tendered the defense to L & T's insurer, USF & G, which agreed to defend PICOR but declined to defend Cordero because it was not named as an additional insured on L & T's policy. USF & G ultimately settled the claims against PICOR for $100,000. Cordero also tendered the defense to PICOR's insurer, CNA, which after a number of months accepted the defense and, in May of 1999, settled the claims against Cordero for $3,700,000 plus $400,000 in costs and attorney fees. As part of the settlement agreement, Cordero agreed to pay Mr. De-Gaugh twenty percent of any amount recovered by it or CNA from USF & G or L & T. In order to effectuate the latter portion of the agreement, Cordero assigned its rights against USF & G to CNA.

[17] On October 2, 2000, Cordero and CNA filed an amended complaint against USF & G and Barlow. Cordero alleged claims against USF & G for breach of contract as an additional insured, bad faith, and reformation of contract. CNA, by virtue of Cordero's assignment of its rights, alleged claims against Barlow for negligence in failing to name Cordero as an additional insured and for breach of contract on the theory that Cordero was an intended third-party beneficiary of the USF & G policy. Cordero and CNA sought to recover damages in the amount paid in settlement of Mr. DeGaugh's claim plus costs and attorney fees incurred as a result of the DeGaugh action and in pursuing their claims against USF & G and Barlow. USF & G and Barlow filed motions for summary judgment on all the claims, which the district court granted. On appeal, Cordero and CNA challenge the court's ruling on the breach of contract, reformation, and negligence claims. They do not challenge dismissal of the bad faith claim.

STANDARD OF REVIEW

[T8] We review orders granting summary judgment according to the following standards:

Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to 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 the parties have asserted. 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 using the same standards and materials as the lower court used. We do not accord deference to the district court's decisions on issues of law.

T.M. Through Cox v. Executive Risk Indemnity Inc., 2002 WY 179, 7, 59 P.3d 721, 17 (Wyo0.2002) (citations omitted).

[19] When third-party beneficiary claims are reviewed, the real question is whether the contracting parties intended the contract to be for the direct benefit of a third party. Wyoming Machinery Company v. United States Fidelity and Guaranty Company, 614 P.2d 716, 720 (Wyo.1980). The intention of the parties is to be gleaned from the contract and the cireumstances surrounding its execution. Richardson Associates v. Lincoln-DeVore, Inc., 806 P.2d 790, 809 (Wyo.1991). Questions relating to the parties' intent are usually factual, precluding summary judgment; however, where the parties' intent is clear such that reasonable minds could not differ, summary judgment may be appropriate. Examination Management Services, Inc. v. Kirschbaum, 927 P.2d 686 (Wyo.1996); Detroit Institute of Arts Founders Society v. Rose, 127 F.Supp.2d 117 (D.Conn.2001).

[110] We have said summary judgment is not favored in negligence actions and is, therefore, subject to more exacting seruti-ny in such cases. Garnett v. Coyle, 2001 WY 94, T 6, 83 P.3d 114, 16 (Wyo.2001). However, summary judgment may be affirmed in negligence cases where the record fails to establish the existence of a genuine issue of material fact. Id.

DISCUSSION

A. Cordero as a third-party beneficiary of Barlow's promise to obtain insurance for L & T and of the USF & G policy

[111] In its decision letter, the district court found Cordero was not a third-party beneficiary of the transaction between L & T and Barlow. Rather, the district court concluded, citing Wyoming Machinery, 614 P.2d at 720, Cordero was an incidental beneficiary and as such acquired no right of action against Barlow. Cordero and CNA argue on appeal that the test for third-party beneficiary status contained in Wyoming Machinery was overruled in Richardson Associates, 806 P.2d 790, and, under the new test, Cordero was a third-party beneficiary to the contract between Barlow and L & T.

[112] In Wyoming Machinery, the court said:

[A] promise may be made to one person for the benefit of another and a third-party beneficiary may enforce his rights under a contract, although not a party to nor specifically mentioned in the contract; but there is more to it than that. An outsider claiming the right to sue must show that it was intended for his direct benefit. Otherwise he may be only an incidental beneficiary because the compelling provisions of a contract require that his claims be satisfied in order to protect another. However, an incidental beneficiary acquires no right of action against the promisor or promisee.

614 P.2d at 720 (emphasis added). On the basis of these principles, the court held that construction project subcontractors were not third-party beneficiaries to a surety bond obtained by the general contractor in compliance with its contract with the project owner guaranteeing the general contractor's performance free of liens from subcontractors. The subcontractors argued they were intended third-party beneficiaries because the bond required them to be paid. However, the court concluded that, simply because a party benefits from performance of a contract, it is not automatically a "third party beneficiary" with individual rights to enforce the contract. The real question, the court said, is whether the parties to the contract intended a direct benefit to a third party; absent evidence of such intent, the party is an incidental benefi-clary with no enforceable rights under the contract. Id. Applying this test, the court held the subcontractors were not intended third-party beneficiaries because the contracting parties' intent was to benefit the owner by assuring a lien free project.

[113] Subsequently, in Richardson Associates, the court concluded a project architect and mechanical engineer were not third-party beneficiaries to a contract between the project contractor and the soil lab. 806 P.2d at 807. In reaching that result, the court applied Restatement (Second) of Contracts, which provides:

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a benefi-clary who is not an intended beneficiary. Restatement (Second) of Contracts § 802 at 439-40 (1981). Applying this test, the court upheld the dismissal of the third-party beneficiary claim on the ground that the architect and engineer failed to adequately allege the soil lab undertook testing for their benefit and, therefore, failed to state a claim that they were anything more than incidental beneficiaries to the contract between the soil lab and the contractor. In reaching this result, the court noted the focus of § 8302 is the intent of the contracting parties rather than reliance by the beneficiary. Wyoming Machinery likewise focused on the contract ing parties' intent. Thus, rather than overruling Wyoming Machinery, the court in Richardson Associates merely applied the Restatement's more recent expression of the basic rule applied earlier in Wyoming Machinery. Thereafter, in Bear v. Volunteers of America, Wyoming, Inc., 964 P.2d 1245, 1252 (Wyo.1998), the court cited both Wyoming Machinery and Richardson Associates in addressing a third-party beneficiary claim.

[114] Having clarified that Wyoming Machinery has not been overruled, we turn to application of § 302 to the first contract at issue: Barlow's alleged promise to obtain insurance for L & T covering Cordero as an additional insured. To succeed on its claim, CNA was required to demonstrate that, (1) under paragraph (1) of § 302 of the Restatement, recognition of Cordero's alleged right to benefits as an additional insured was appropriate to effectuate the intent of L & T and Barlow; and, (2) under subparagraph (1)(b) of that section, the circumstances indicate L & T intended to give Cordero the direct benefit of being named as an additional insured on the policy. On summary judgment, Barlow had the initial burden of showing no genuine issue of material fact existed on these issues. The burden then shifted to CNA to demonstrate a material dispute as to the parties' intent. In making the requisite showing of intent, the parties were entitled to rely on the language of the insurance policy and the circumstances surrounding the parties at the time of its execution for " 'each case must depend upon the intention of the parties as that intention is to be gleaned from a consideration of all of the contract and the cireumstances surrounding the parties at the time of its execution.! " Richardson Associates, 806 P.2d at 809 (quoting People ex rel. Resnik v. Curtis & Davis, Architects & Planmers, Inc., 78 Il.2d 381, 86 Il.Dec. 888, 400 N.E.2d 918, 919 (1980)); see also Kemmerer Bottling Group, Inc. v. Sentry Equipment Erectors, Inc., 1996 U.S. Dist. LEXIS 12642 (N.D.I1.1996) (third-party beneficiary status must be determined from the contract and the cireum-stances surrounding the parties at the time of its execution); Detroit Institute of Arts Founders Society, 127 F.Supp.2d 117 (the intent of the parties is to be determined from the terms of the contract read in light of the cireumstances attending the making of the contract, including the motives and the purposes of the parties).

[T15]l USF & G has argued strenuously throughout the case that the rules of contract construction apply, meaning that the court must look first at the four corners of the document and, if no ambiguity is found, look no further. USF & G is correct that, in construing or interpreting contracts, the intent of the parties is to be ascertained from the words used and, when a provision is clear and unambiguous, the court looks only to the four corners of the document in determining the parties' intent. Newman v. RAG Wyoming Land Company, 2002 WY 182, 111, 53 P.3d 540, T11 (Wyo. 2002). However, in interpreting unambiguous contracts, we have consistently looked to surrounding cireumstances, facts showing the relations of the parties, the subject matter of the contract, and the apparent purpose of making the contract. Id.; Central Wyoming Medical Laboratory, LLC v. Medical Testing Lab, Inc., 2002 WY 47, 1 16, 43 P.3d 121, 116 (Wyo.2002). Moreover, a third-party benefi-clary claim is distinct from other claims based in contract in that it creates a direct action by one not a party to the contract to enforce the contract for its benefit even though that party is not mentioned in the contract itself. In some contracts, the third-party beneficiary is not identified in the contract, and we can and must look to the surrounding cireumstances to determine intent. Doing so is not an improper extension of the terms of the contract but rather is a necessary step in effectuating the intent of the parties.

[116] Among the surrounding cireumstances which must be considered in determining intent to benefit a third party are contracts executed in conjunction with the contract giving rise to the third-party beneficiary claim. Thus, in Wyoming Machinery, the court construed the surety contract from which the third-party beneficiary claim arose in conjunction with the construction contract pursuant to which it was executed. 614 P.2d at 719-20. When we apply this standard in the present case, we conclude Barlow's promise to procure insurance for L & T must be considered in conjunction with the contracts giving rise to the request for insurance-the PICOR-L & T purchase order and the Cordero-PICOR contract.

[T17] Before considering those contracts, we note the general rule that an injured third party has an enforceable right against an insurer if a liability policy is so worded as to indicate it was executed for the protection of third persons; it is only where the policy makes it clear it is intended solely for the protection of the promisee that a third party has no enforceable right under the policy. 9 Arthur Linton Corbin, Corbin on Contracts § 807 at 188-89 (Interim Ed.1979). Where the words of the policy are not clearly to the contrary, a liability policy should be held to be for the protection of third parties as well as the beneficiary. Id. at 192. A number of courts have applied this general rule to conclude a party designated as an additional insured in a liability policy is a third-party beneficiary. Binasco v. BreakAway Demolition Corp., 256 A.D.2d 291, 681 N.Y.S.2d 309 (N.Y.App.Div.1998); Carvalho v. Toll Brothers and Developers, 278 N.J.Super. 451, 651 A.2d 492 (Ct.App.Div.), cert. granted, 140 N.J. 326, 658 A.2d 726 (1995), and affd and remanded, 148 N.J. 565, 675 A.2d 209 (1996); Community Bank of Homestead v. American States Insurance Company, 524 So.2d 1154 (Fla.Dist.Ct.App.1988) (per curiam).

[118] When we apply this general rule to Barlow's promise to obtain insurance for L & T, we conclude the parties Barlow and L & T intended to name as additional insureds are third-party beneficiaries. The question here is whether they intended to designate Corde-ro rather than or in addition to Kennecott as an additional insured. From the record before us, we conclude the parties clearly intended Cordero as an additional insured and, therefore, recognition of Cordero as a third-party beneficiary is appropriate to effectuate the intent of L & T and Barlow, thus satisfying the first prong of $ 302 of the Restatement (Second) of Contracts. We further conclude the evidence demonstrates a clear intent on the part of L & T to give Cordero the direct benefit of being named an additional insured, thereby meeting the second prong of the Restatement test.

[T 19] . The PICOR-L & T purchase order required L & T to:

1. Adhere to all provisions of the contract between PICOR and Cordero Mining Co.
a. Furnish PICOR & Cordero with insurance certificates per Article 11 of the contract.
1. Both PICOR & Cordero to be named as an additional insured.

Article 11 of the Cordero-PICOR contract required PICOR and its subcontractors to maintain insurance naming the "Company Group" as an additional insured. The Company Group was defined in the Cordero-PICOR contract to include Cordero, Kenne-cott, and each of their respective subsidiaries. When the two contracts are read together, it is clear the intent was for L & T to procure insurance naming Cordero as an additional insured.

[T20] Consistent with the written contracts, L & T president Loren Crain testified it was his intent that Cordero be named as an insured in compliance with the PICOR-L & T purchase order. Additionally, Barlow representative Charles Parker testified he could not specifically recall whether L & T indicated Cordero, or Kennecott, was to be named as an additional insured but thought they were one and the same and, in any event, it was his intent in obtaining the insurance coverage from USF & G to name the owner of the mine as an additional insured and to comply with the terms of L & T's contractual obligations. There simply is no question Cordero was the owner of the mine and the entity responsible for this project. Cordero contracted with PICOR to perform work on the project at Cordero's mine, and PICOR contracted in turn with L & T to perform work for Cordero. There also is no question that the terms of L & T's purchase order required L & T to procure insurance naming Cordero as an additional insured. Under these cireumstances, we hold that no genuine issue of material fact existed on the question of whether Cordero was an intended third-party beneficiary to L & T's promise to procure insurance and CNA was entitled to summary judgment on that issue. In so holding, we note the following language of the federal district court for the District of Connecticut:

Although issues relating to intent are usually questions of fact for the jury, here the parties' intent to benefit the [third-party beneficiary] is clear as a matter of law. In light of the cireumstances attending the making of the contract and the parties' motives, "it is hard to see how the [third-party beneficiary] could not have been an intended beneficiary of the contract."

Detroit Institute of Arts Founders Society, 127 F.Supp.2d at 132 n. 32 (quoting Delocrows v. Lublin Graphics, Inc., 993 F.Supp. 74, 83 (D.Conn.1997)).

[121] We turn next to the question of whether Cordero was an intended third-party beneficiary of the USF & G policy. Resolution of this question under the facts presented turns on whether Barlow's knowledge and intent can be imputed to USF & G. That is, since Barlow knew the intent was to name Cordero as an additional insured on L & T's policy, can that knowledge be imputed to USF & G?

[122] The authority of an insurance agent to make a contract of insurance binding upon the insurer is determined by the law of agency. 8 Eric Mills Holmes, Holmes' Appleman on Insurance 2d, Law of Insurance Agents § 52.1 at 891 (1998). The underlying ageney principle is that the insurer will be bound by the acts of its agent undertaken within the scope of that agency. Id. at 892. The courts lean toward a broad rather than a strict construction of an insurance agent's powers, an agent's written authority is to be broadly and fairly construed, and a narrow meaning is not to be given to it unless the language employed clearly indicates that such was the intention of the parties. Id. at 394. An "insurance agent," so far as the insurer is concerned, is a person with actual (including express or implied) authority to represent the insurer in dealing with third parties in matters relating to insurance. Id. at 395. In preparing and executing a policy, an insurance agent acts as the agent of the insurer. Id. at 397. Even where the person's functions consist merely of soliciting insurance, receiving applications, forwarding them, receiving in return the policy and delivering it, and collecting the premium, that person is an agent in the ordinary sense of that term. Id.

[123] On the basis of similar principles, this court held in Wyatt v. State Farm Fire and Casualty Company, 78 Wyo. 228, 822 P.2d 137 (1958), that the knowledge of an agent is imputed to the insurer even when such knowledge is not in fact communicated to the insurer. In Wyatt, the insurer denied coverage after the insured's garage was destroyed by fire, claiming the policy covered the garage only if used for domestic purposes and the insured was using it for commercial purposes. The court concluded the policy did not clearly exclude coverage for commercial purposes and imputed to the insurer the agent's knowledge at the time the policy was negotiated that the garage was being used commercially. Although Wyaift involved a claim for estoppel against the insurer, we find the general principle enunciated there applicable to the claim presented here.

[124] The USF & G agency agreement executed with Barlow provided in relevant part:

1. [USF & G] hereby grants authority to [Barlow] in the designated territory, to solicit and submit applications for insurance ...; to issue and deliver policies, ... certificates, endorsements and binders which [USF & G] may, from time to time, authorize to be issued and delivered; to collect and receipt for premiums thereon; to cancel such policies ... at the discretion of [Barlow] where cancellation is legally possible; and to retain out of premiums collected and paid over to [USF & G] commissions at the rates set forth in the Commission Schedules.

Giving this provision a broad, fair construction, we conclude Barlow's knowledge that Cordero was to be named as an intended additional insured on L & T's policy may be imputed to USF & G. Even absent the substantial authority supporting this conclusion under agency principles, we would be inclined to reach this result based upon equitable principles under the particular circumstances presented here, where it is so abundantly clear the intent was to name Cordero-the contracting party, owner of the mine, and overseer of the project-as an additional insured. As this court has previously said, "[tlhere are some cireum-stances ... where the plaintiff could rely upon an agent's representations even as against a contrary provision in the insurance policy, based upon not only principles of agency but considerations of equitable estoppel." Hunter v. Farmers Insurance Group, 554 P2d 1239, 1248 (Wyo.1976). We hold that Cordero was an intended third-party beneficiary of the USF & G insurance policy.

B. L & T's acceptance of the policy naming Kennecott as an additional insured as defeating the third-party beneficiary and negligence claims

[125] In the complaint, CNA, as assignee of Cordero's rights, alleged Barlow knew the intent of the policy was to benefit Cordero; it was foreseeable, therefore, that Cordero would sustain injury if Barlow failed to designate it as an additional insured; and Cordero in fact sustained injury as a result of Barlow's negligent failure to designate it. The district court dismissed the negligence claim on the grounds that L & T had a duty to review the insurance policy and reject it if it did not comply with the coverage requested; L & T knew, or should have known, Cordero was not named as an additional insured; and Cordero did nothing to ensure proper insurance coverage was in place prior to allowing PICOR and L & T to begin work at the mine.

[T26]) In support of the district court's ruling, Barlow cites Small v. King, 915 P.2d 1192, 1194 (Wyo.1996), and Feather v. State Farm Fire and Casualty, 872 P.2d 1177, 1181-82 (Wyo.1994), for the principle that an insured has a duty under Wyoming law to read its insurance policy and reject it if it is unacceptable. Barlow claims the evidence clearly establishes L & T knew the certificate listed Kennecott and did nothing about it, thereby relieving Barlow of responsibility for any resulting injury. Barlow claims the insured's duty to read and reject applies in contract and in tort and applies to Cordero as a third-party beneficiary as well as L & T because the former should stand in no better position than the latter-ie., if a claim by L & T would fail for its failure to read and reject, Cordero is barred as well, McWil-liams v. Wilhelm By and Through Wilhelm, 898 P.2d 1147, 1149 (Wyo.1995) (tort and contract); Farmers' State Bank of Worland v. Nicholson, 86 Wyo. 221, 254 P. 134 (1927) (third-party beneficiary stands in same position as original party).

[T27] Barlow is correct that Wyoming recognizes an insured's duty to read his insurance policy and reject or renegotiate if it fails to conform to the coverage requested. Small, 915 P.2d at 1194; Feather, 872 P.2d at 1181. Barlow is also correct that the duty to read applies in cases where an insured claims the insurer failed to exercise reasonable care in providing the insurance requested. Id. These principles are also applicable to third-party beneficiary claims.

[T28] In Wyoming, a duty of reasonable care arising from a contract may extend to third-party beneficiaries of the contract in proper civeumstances. Tidwell v. HOM, Inc., 896 P.2d 1822, 1325 (Wyo0.1995). However, third-party beneficiary claims arising out of an alleged failure to exercise ordinary care are subject to the same defenses as would be available in an action between the actual parties to the contract. John D. Calamari & Joseph M. Perillo, The Law of Contracts § 17.10 (4th ed.1998).

[129] Applying this rule to the present facts leads to the conclusion that Barlow may assert the defense against Cordero that L & T failed to read and reject the policy just as it could assert that defense against L & T. There is no dispute that L & T knew Kennecott, rather than Cordero, was designated as an additional insured and did nothing to correct it. Under these circumstances, USF & G was entitled to summary judgment on the third-party beneficiary claim.

[T30] The same analysis applies to CNA's negligence claim against Barlow. The duty to mitigate unquestionably applies in tort just as it applies in contract. MeWil-liams, 898 P.2d 1147. Although the question of whether a party injured due to the negli-genee of another is generally a question of fact, summary judgment is appropriate where reasonable minds could not differ that the plaintiff had ample right and opportunity to avoid the loss and yet took no action. Garnett, 2001 WY 94, 16, 33 P.3d 114, 16; Moore v. Continental Insurance Company, 813 P.2d 1296, 1300-01 (Wyo.1991). Here, the evidence is undisputed that L & T knew four months before the accident that the policy named Kennecott and did nothing about it. Under these particular cireum-stances, summary judgment was appropriate on the negligence claim.

, [131] Barlow also claims summary judgment was appropriate because, contrary to the terms of the Cordero-PICOR contract, Cordero allowed work to begin on the project without making sure PICOR and L & T had the required insurance. Citing Moore, Barlow contends any damages sustained by Cordero could not be charged against Barlow because Cordero could have avoided them by ensuring the proper insurance coverage was in place before work began. In Moore, after repeatedly receiving late premium payments from the insured, the insurer cancelled the homeowner's policy and refunded the last payment. Upon receipt of the refund, the insured contacted the local agent and was told the policy had been can-celled. Beyond asking the local agent to see if another company would pick up the insurance, the insured did nothing to obtain replacement coverage until after his home was seriously damaged by fire. We affirmed summary judgment for the insurer based upon the insured's failure to act to mitigate his damages. We said:

A party may, in certain instances, be required to mitigate his damages, and whether an injured party has exercised reasonable diligence and care in mitigating damages is for the trier of fact to decide. [However,] where reasonable minds could not differ with respect to efforts to mitigate, as here, summary judgment is appropriate.

Moore, 818 P.2d at 1800-01 (citation omitted). In reaching this result in Moorg, we quoted Restatement (Second) of Contracts § 8350 (1981):

"(1) Except as stated in Subsection (2), damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation.
"(2) The injured party is not precluded from recovery by the rule stated in Subsection (1) to the extent that he has made reasonable but unsuccessful efforts to avoid loss."

813 P.2d at 1301. Explaining § 350, we said:

The rationale of this principle, which differentiates it from mitigation in a more general sense, is that damages which the plaintiff might have avoided with reasonable effort and without undue risk, expense, or humiliation are either not caused by the defendant's wrong or need not have been, and, therefore, are not to be charged against him. 11 Williston on Contracts § 1353 (Brd ed.1968); 5 Corbin on Contracts § 1089 (1964).

Id.

[132] Application of these principles in the present case provides further support for summary judgment. USF & G issued the certificate naming Kennecott as an additional insured on March 21, 1997, approximately four months before Mr. DeGaugh was injured. Although Cordero's contract with PI-COR required all insurance coverage to be in place before work on the project began, Cordero did not inspect the certificate or make any inquiry whatsoever to ensure the required insurance coverage was in place. Had Cordero requested proof of the required insurance, as was its right under the PICOR contract, before allowing work to begin or at any time in the four months between issuance of the certificate and the accident, it seems likely a corrected certificate could have been issued. Here, however, Cordero took no action to avoid the loss for which recovery is sought from USF & G. The damages CNA now seeks to recover, as assignee of Cordero's rights, could have been avoided with reasonable effort and without undue risk, expense, or humiliation. Any such damages, therefore, either were not or need not have been caused by the acts of USF & G or Barlow and cannot be charged against them.

CONCLUSION

[133] Cordero was an intended third-party beneficiary of Barlow's promise to procure insurance for L & T. However, the undisputed evidence that L & T accepted the certificate as written and Cordero failed to take any reasonable action to avoid the loss for which recovery is sought defeats both the third-party beneficiary and the negligence claims.

[¥34] Affirmed.

      . As previously noted in this opinion, Cordero assigned its rights against USF & G to CNA in the settlement agreement entered into with Mr. DeGaugh. Thus, although the third-party claim actually belongs to Cordero, it was brought in CNA's name by virtue of the assignment of rights.


source: Caselaw Access Project

license: Public Domain

text:
    2003 WY 50
    Joe BERTAGNOLLI, Appellant (Plaintiff), v. Max LOUDERBACK and Larry Westbrook, Appellees (Defendants).
    No. 02-65.
    Supreme Court of Wyoming.
    April 21, 2003.

      Michael R. O'Donnell and Rhonda Sigrist Woodard of Woodard & O'Donnell, P.C., Cheyenne, Wyoming; and Sharon Rose of Lavery & Rose, P.C., Evanston, Wyoming, Representing Appellant.
    Ford T. Bussart and Marvin L. Tyler of Bussart, West & Tyler, P.C., Rock Springs, Wyoming, Representing Appellees.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[11] Joe Bertagnolli was injured while working in General Chemical Corporation's trona mine in Sweetwater County. He filed suit against his co-employee supervisors, Max Louderback and Larry Westbrook, alleging they required him to work in an area of the mine generally known to be extremely dangerous and refused his request to "lock out," or turn off, the power to the shuttle belt machine (shuttle belt). The district court granted the supervisors' motion for summary judgment concluding they did not have knowledge of an unguarded sheave wheel which was the specific instrumentality of Mr. Bertagnolli's injury and, therefore, as a matter of law, they could not be liable for the injuries under Wyo. Stat. Aun. § 27-14 104(a) (LexisNexis 2001). We find questions of material fact existed regarding the supervisors knowledge of the general risks of working near the shuttle belt and whether their actions met the requirements of the statute and constituted willful and wanton misconduct and, therefore, reverse.

ISSUE

[T2] The parties agree only one issue is presented on appeal: Did the district court err in granting summary judgment in favor of the co-employee supervisors?

FACTS

[¥3] "Pursuant to our standard of review for summary judgments, we recite the facts from the vantage point most favorable to the plaintiffs, as the party opposing the motions, awarding them all the favorable inferences which may be drawn from those facts." Andersen v. Two Dot Ranch, Inc., 2002 WY 105, ¶ 3, 49 P.3d 1011, ¶ 3 (Wyo.2002); see also S & G Investors, LLC w. Blackley, 994 P.2d 941, 943 (Wyo.2000). Evidence submitted by Mr. Bertagnolli in opposition to the supervisors' summary judgment motion consisted of lengthy affidavits, deposition excerpts, and exhibits which set forth his version of the events. The following summary of the facts is drawn from those materials.

[14] On November 13, 1996, Mr. Bertag-nolli was instructed by his section foreman and direct supervisor, Mr. Westbrook, to shovel ore rubble in the west end of the shuttle belt area of the mine also known as the 702 area. Mr. Bertagnolli had worked at the mine for about two years but had never before worked in the shuttle belt area.

[T5] The shuttle belt moves raw ore from the level of the mine on which mining occurs to lower levels where other equipment moves it to the surface. It resembles an open rail car with a long, continuous belt on top and travels up and down a track approximately forty to fifty feet in length by means of a steel cable attached to both ends of the car. The cable makes a large loop around several pulley wheels called "sheave wheels." The cable and sheave wheels are approximately twelve inches above the track. The cable runs through an electric motor called a "tug-ger" which can pull the shuttle belt in either direction on the rail track. An operator controls the movements of the shuttle belt from a level of the mine below where the shuttle belt is located. By maneuvering the shuttle belt back and forth, the operator aligns it over bins which receive ore from the bottom of the shuttle belt and then transfer the ore to a set of feeders that move it to another series of belts and on to the surface. In the east end, workers are protected from the movements of the steel cable by a series of steel walkway plates positioned over the cable. There is also a steel guardrail in the east end to keep workers away from the shuttle belt and its moving parts. On the west end, however, the steel cable is exposed, the sheave wheels are unguarded, no steel plates are in place over the cables, and there is very little clearance between the shuttle belt and the walls of the mine. Workers in the west end are unprotected from the dangers presented by the shuttle belt and its moving parts.

[T6] When Mr. Bertagnolli was instruct, ed to shovel the shuttle belt area clean, he and Mr. Westbrook were standing in the west end. Mr. Bertagnolli asked whether he was expected to do the work while the shuttle belt was operating, and Mr. Westbrook responded in the affirmative. Mr. Bertag-nolli then requested the belt be "locked out" so it could not be turned on while he was in harm's way. Mr. Westbrook left to discuss the matter with Mr. Louderback, the shift supervisor. The supervisors came back together, and Mr. Louderback advised Mr. Bertagnolli the belt would not be locked out. Mr. Bertagnolli stated he would not work in the area unless the belt was locked out, and Mr. Louderback told him, if he did not do the job, he could be fired. Mr. Bertagnolli asked that the union steward be contacted to resolve the matter. Mr. Louderback instructed Mr. Westbrook to notify the union steward, and then they both left the area. Mr. Bertagnolli, believing he could be fired for refusing to work, started to shovel the ore debris in the west end of the shuttle belt area while he waited for the union steward to arrive.

[17] John "Bud" Dolce, one of Mr. Ber-tagnollfs crew mates, walked by the shuttle belt area a couple of hours later. He called to Mr. Bertagnolli and told him he was shoveling in "an unsafe area that needed to be locked out." Mr. Bertagnolli told Mr. Dolce he had been ordered by Mr. Louderback to do this job and he had requested a union steward. About an hour or so later, while Mr. Bertagnolli was working approximately five feet behind the rail car, the car started to travel back towards him, and the cable beneath his feet began to move. He threw his shovel to the left and tripped when he stepped back to grab his wheelbarrow. He stuck his right foot behind him to catch his balance, and his boot caught in the pinch point between one of the steel cables and the sheave wheel. The wheel completely severed the back portion of Mr. Bertagnollis right foot. Over the following three years, Mr. Bertagnolli underwent eleven surgeries to repair his foot. In the end, these efforts were unsuccessful, and in October of 1999 his right leg was amputated just below the knee.

[18] Mr. Bertagnolli filed suit against the supervisors under § 27-14-104(a) alleging they willfully, wantonly, and intentionally ordered him to work in close proximity to operating equipment with known dangers of amputation and death and for refusing to turn off the electricity to the equipment after being specifically requested to do so. The supervisors moved for summary judgment contending they could not be liable for Mr. Bertagnolif's injuries because they did not know the sheave wheel that severed the back portion of his foot was unguarded. For purposes of the summary judgment, the parties orally stipulated that the legal standard for co-employee liability should be based on § 27-14-104(a) and the willful and wanton misconduct standard. In their briefs submit, ted to this court, they agree, under § 27-14 104(a), liability is imposed on co-employees who commit intentional acts or willful and wanton misconduct.

[T9] After the summary judgment hearing, the district court granted the supervisors' motion concluding Mr. Bertagnolli presented no evidence that they had knowledge prior to his accident that the sheave wheel was unguarded. Consequently, the supervisors could not be found to have violated § 27-14-104(a) or the willfal and wanton misconduct standard and, at most, were negligent. This appeal followed.

STANDARD OF REVIEW

[T10] When a motion for summary judgment is before this court, assuming there is a complete record, we have exactly the same duty and materials as did the district court and must follow the same standards. Hoblyn v. Johnson, 2002 WY 152, T11, 55 P.3d 1219, T11 (Wyo.2002). The propriety of granting summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and the prevailing party is entitled to judgment as a matter of law. Id. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all the favorable inferences which may be drawn from the facts contained in affidavits, depositions, and other materials appearing in the record. Id.

[111] The party moving for summary judgment bears the initial burden of establishing a prima facie case for a summary judgment. If the movant carries this burden, the party opposing the summary judgment must come forward with specific facts to demonstrate that a genuine issue of material fact does exist. Eklund v. PRI Enmvironmental, Inc., 2001 WY 55, 110, 25 P.3d 511, 110 (Wyo.2001). A material fact has been defined as a fact upon which the outcome of the litigation depends in whole or in part. Hoblyn, 2002 WY 152, 11, 55 P.3d 1219, T 11.

DISCUSSION

A. Co-employee Liability

[112] In order to determine whether a disputed issue of material fact existed in this case, we must first clarify the standard for co-employee liability against which the evidence is to be measured. Wyoming's co-employee liability law under the worker's compensation statutes has evolved over the past several decades. This court's discussion in Mills v. Reynolds, 837 P.2d 48, 52 (Wyo. 1992), includes a concise review of the relevant historical developments. The Wyoming Constitution provides employers who contribute to the worker's compensation fund immunity from liability for employees injured on the job. Wyo. Const. art. 10, § 4.

[113] However, in 1974, this court recognized and adopted the common law doctrine that co-employees could be lable when their own negligence caused injury to other employees. Markle v. Williamson, 518 P.2d 621, 624 (Wyo.1974). In 1975, the legislature provided co-employees immunity when they were "acting within the seope of their employment unless the employees [were] grossly negligent." 1975 Wyo. Sess. Laws ch. 149, § 1 (§ 27-812(a). Shortly thereafter, the legislature substituted the words "culpably negligent" for "grossly negligent." 1977 Wyo. Sess. Laws ch. 142, § 1 (§ 27-812(a)) (renumbered § 27-12-108(a)). In interpreting these provisions, this court determined the legislature's qualified grant of co-employee immunity, excepting cireumstances of culpable negligence, was constitutional and did not violate Article 10, Section 4 of the Wyoming Constitution because the amount of damages recoverable was not limited. Instead, the statute limited only the causes of action available for recovery. Meyer v. Ken-dig, 641 P.2d 1285 (Wyo.1982).

[114] In 1986, the legislature repealed § 27-12-108(a) and recreated it as § 27-14-104(a) to provide for total immunity of co-employees. 1986 Wyo. Sp. Sess. Laws ch. 3, § 3. In Mills, we held § 27-14-104(3a) unconstitutional as it violated the equal protection clause of Article 3, Section 27 of the Wyoming Constitution by treating similarly situated people differently and violated Article 1, Section 8 of the Wyoming Constitution by denying aceess to courts when it granted co-employees complete immunity from suits, including immunity for intentional acts and for willful and wanton misconduct. Millis, 837 P.2d at 49, 54. In reaching this conclusion, we stated:

[Wie do not perceive that complete immunity for co-employees who were acting within the scope of their employment was the least onerous means by which the objective of the Act could be achieved. Section 27-14-104(a) precluded employees from bringing suit against co-employees who committed intentional torts while they were acting within the scope of their employment. In essence, that provision permits an employee to intentionally harm a co-employese without being concerned about civil liability. While such immunity may slightly decrease the number of lawsuits filed by employees and increase the number of employees who will be guaranteed compensation, it severely burdens the State's undeniable interest in prohibiting an individual from committing an intentional tort without the possibility of liability. Harmony in the work place may actually be enhanced if an employee knows that the worker next to him will be legally accountable for some of his actions, and, even though the parties have not presented facts concerning insurance costs and the financial status of the worker's compensation fund, we would be hard pressed to hold that those objectives could be attained only under a scheme which provided complete immunity to employees.

In summary, the legislature's grant of complete immunity to co-employees, which includes immunity for intentional acts and for willful and wanton misconduct, infringed upon the fundamental right to access to the courts. Such an infringement triggers application of the strict scrutiny test. Under that test, we are unable to identify a compelling state interest which would permit complete immunity for co-employees.

Id. at 55 (citations & footnote omitted).

[115] In response to the Mills decision, the legislature amended the co-employee liability statute in 1998. This version of the statute was in effect on the date of Mr. Bertagnolli's accident and remains so today:

(a) The rights and remedies provided in this act for an employee including any joint employee, and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer and any joint employer making contributions required by this act, or their employees acting within the seope of their employment unless the employees intentionally act to cause physical harm or injury to the injured employee, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

Section 27-14-104(a) (emphasis added); see also 1998 Wyo. Sess. Laws ch. 47, § 1. Since its passage, we have referenced this version of the statute as it relates to the interpretation of the phrase "intentionally act to cause physical harm or injury" on only one occasion, in Harbel v. Wintermute, 883 P.2d 359 (Wyo0.1994), and stated:

The exclusive remedy provisions of the Worker's Compensation Act do not provide immunity to a co-employee who commits intentional acts or willful and wanton misconduct. Mills v. Reynolds, 837 P.2d 48, 55 (Wyo.1992). See Wyo. Stat. § 27-14-104(a) (permitting co-employee tort action when "employees intentionally act to cause physical harm or injury to the injured employee ...."). Therefore, under the Worker's Compensation Act, [the employee] was permitted to sue [the co-employees] to recover damages for personal injury suffered in a work-related accident that allegedly resulted from the culpable negligence of his co-employees. Copp v. Redmond, 858 P.2d 1125, 1126-27 (Wyo.1993) (holding that for claims aceru-ing between July 1, 1987 and February 18, 19983, proof of culpable negligence was required for co-employee tort action). See Wyo. Stat. § 27-12-103(a) (1983) (repealed 1986) (establishing culpable negligence as standard of negligence for co-employee litigation under Worker's Compensation Act).

883 P.2d at 363 (emphasis added). This discussion implies that the amended standard of "intentionally act to cause physical harm or injury" equates to willful and wanton misconduct. We continue to believe the concept of willful and wanton misconduct has essentially the same legal effect as the statutory language "intentionally act to cause physical harm or injury." Well before the 1998 amendment to § 27-14-104(a), this court expressly defined willful and wanton misconduct in terms of intentional actions:

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under cireumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.

Weaver v. Mitchell, 715 P.2d 18361, 1870 (Wyo0.1986) (emphasis added); see also May-Rower Restaurant Company v. Griego, T4l P.2d 1106, 1115 (Wyo.1987). In addition, one of the bases of the Mills decision was the conclusion that allowing immunity for intentional acts and willful and wanton behavior violated the constitution, and the legislature's response to that decision was the adoption of the statute granting immunity except for intentional acts. Mills, 837 P.2d at 55. Our conclusion that the statutory grant of immunity covers all but intentional acts and willful and wanton misconduct is consistent with the parameters of statutory construction:

"All statutes are presumed to be enacted by the legislature with full knowledge of the existing state of law with reference thereto and statutes are therefore to be construed in harmony with the existing law, and as a part of an overall and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to the decisions of the courts."

Fosler v. Collins, 13 P.3d 686, 689 (Wyo0.2000) (quoting Voss v. Ralston, 550 P.2d 481, 486 (Wyo.1976)); see also Amdersen, 2002 WY 105, 1 22, 49 P.3d 1011, 1 22.

[116] Mr. Bertagnolli argues the key factors in finding co-employee lability under § 27-14-104(a) are a co-employee with (1) knowledge of the hazard or serious nature of the risk involved, (2) responsibility for the injured employee's safety and work conditions, and (8) willful disregard of the need to act despite the awareness of the high probability that serious injury or death may result. Our jurisprudence in this area is consistent with these factors. In Calkins v. Boydston, 796 P.2d 452 (Wyo0.1990), we held the injured employee must demonstrate his co-employees had actual knowledge of the dangerous condition which caused his injury. Mr. Cal-kins worked for an oil well service company and was injured when his leg got caught in the unguarded drive shaft of a pump truck. He sued the company secretary-treasurer, Marinell Boydston, and her son Gerald Boyd-ston, the president of the company. The evidence demonstrated Mr. Calkins had used the pump truck in the past and had informed the Boydstons that the pump needed to be replaced. However, he provided no evidence the Boydstons knew the drive shaft was unguarded or the pump was dangerous; therefore, summary judgment was proper.

[117] In Smith v. Throckmartin, 898 P.2d 712 (Wyo.1995), this court emphasized that the co-employee's actions must be willful

and not merely inadvertent in nature. In that case, Mr. Throckmartin was Mr. Smith's supervisor, and, on the day of the accident, they were working together loading sand into a truck. Mr. Throckmartin operated a backhoe while Mr. Smith tamped and broke up clumps of sand in the truck bed with a metal bar. By Mr. Smith's own admission, Mr. Throckmartin hit the metal bar with the backhoe bucket by mistake causing Mr. Smith to fall from the truck bed and incur serious head and spinal injuries. This court again required the plaintiff to provide evidence the co-employee acted with a state of mind approaching intent to do harm or committed an act of an unreasonable character in disregard of known or obvious risks so great as to make it highly probable that harm would follow. 898 P.2d at 714. Inferences from evidence of violations of safety regulations were found insufficient to raise genuine issues of material fact regarding the co-employee's knowledge of the nature of the risks, particularly when uncontroverted evidence that the co-employee lacked such knowledge was presented. See also McKennan v. Newman, 902 P.2d 1285, 1287-88 (Wyo.1995); Poulos v. HPC, Inc., 765 P.2d 364, 866 (Wyo. 1988).

[T18] In Case v. Goss, T6 P.2d 188 (Wyo.1989), we reversed summary judgment in favor of certain co-employees, and the underlying facts are similar to those alleged by Mr. Bertagnolli The plaintiff provided evidence that responsible supervisors were apprised of the dangerous condition, failed to take reasonable steps to remedy the dangerous condition, and overtly threatened to fire the reporting employee who was ultimately injured. While working at a coal mine, Mr. Case slipped on a hidden grease spot and fell onto the metal surface of the boom point sheave area of a dragline. We found evidence was provided that four. co-employees had varying degrees of direct supervisory responsibility for Mr. Case's safety and working conditions, had been made aware of the dangerous condition, had refused to clean or allow Mr. Case to clean or lock out the area to lessen the danger posed, and had threatened to terminate his employment if he did not do the work as instructed.

[119] In each of these cases, we consistently held the requirements of the statute and the standards of willful and wanton misconduct were met when the evidence demonstrated the co-employee had knowledge of the dangerous condition and demonstrated a disregard of the risks through intentional acts. With this standard in mind, we now must review the evidence submitted by Mr. Bertagnolli to determine whether it was sufficient to create a genuine issue of material fact with regard to the supervisors' knowledge of the dangerous condition and whether they acted intentionally in disregard of known risks.

B. Summary Judgment

[T20] Upon review of the order granting summary judgment and the supporting opinion letter, it is evident the district court believed the only issue before it was the narrow question of whether the supervisors knew of the unguarded sheave wheel and the danger it presented. In truth, the issues presented by Mr. Bertagnolli in his complaint were much broader than simply the danger posed by the unguarded sheave wheel and, instead, included the well-known dangers associated with the larger apparatus, the shuttle belt, especially when employees were required to work in close proximity to the machine while it was energized and operational.

[121] The broad nature of Mr. Bertag-nolli's negligence claim is also clear from the affidavits, deposition excerpts, and exhibits submitted in response to the supervisors summary judgment motion which demonstrate a much more pervasive safety risk than just the unguarded sheave wheel. Mr. Bertagnolli testified in his affidavit that, on the day he was injured, he specifically asked Mr. Westbrook to lock out the shuttle belt. Mr. Westbrook reportedly asked Mr. Loud-erback whether the machine should be locked out while Mr. Bertagnolli worked in the west end shoveling debris. Mr. Louderback allegedly told Mr. Bertagnolli he would not allow the shuttle belt to be locked out, and Mr. Bertagnolli responded he would not work in the shuttle belt area unless the equipment was locked out because moving belts are extremely dangerous and he did not want to be exposed to this kind of danger. Mr. Louderback purportedly threatened to fire Mr. Bertagnolli. Mr. Bertagnolli testified he requested the union steward be called because he believed the steward could determine whether his safety concerns were justified and require the shuttle belt be locked out. However, Mr. Bertagnolli also alleged he thought, while waiting for the steward's arrival, he was required to perform the assigned task or risk losing his job. Mr. Ber-tagnolli's affidavit also states he attended safety meetings where the supervisors were present and the lockout policy was discussed. He learned at those meetings the mine policy provided the equipment had to be locked out whenever anyone was required to work around a moving belt or other moving piece of equipment.

[122] Dean Wehr, a mine employee until 1996 and supervisor of mine maintenance from 1989 to 1994, explained in his affidavit that the shuttle belt operator controls movement of the shuttle belt from a level below where the machine is located and, while operating the machine, cannot see the shuttle belt area where Mr. Bertagnolli was working. His affidavit also stated:

18. ... [The policy, practice and custom at this mine, including on November 13, 1996, [understood by every worker and supervisor] was that no worker was allowed to perform maintenance on ... any parts of the Shuttle Belt unless it was locked out [because tlo do otherwise would have been a violation of the safety rules at the mine, a gross violation of long-standing custom and practice, and could expose workers to a high degree of probability of being severely injured or killed.
20. The only time workers were allowed into the area of the Shuttle Belt was when it was locked out.... With the equipment not in operation, the extreme risk of severe injury or death ... was reduced and workers were allowed to perform maintenance and cleaning in the area.
22. The shift supervisor and section foreman, among others, have the direct responsibility of enforcing the policies, practices and customs of the mine regarding miner safety. They have the direct responsibility ... to make certain that none of their workers are working in the west end, or unprotected end, of the load-out area of the mine, or around the Shuttle Belt, unless the Shuttle Belt has been locked out.... This responsibility existed through my years at the General Chemical mine.

[123] Mr. Dolce, a co-worker and crew mate on the night of the accident, signed an affidavit swearing he saw Mr. Bertagnolli shoveling in the west end of the shuttle belt area, he yelled to him he was in an unsafe area that needed to be locked out, and Mr. Bertagnolli responded that Mr. Louderback had ordered him to do the work and he had requested a union steward. Mr. Dolee told Mr. Bertagnolli that he would have refused to do the work. Mr. Dolee's affidavit also states he attended meetings where the supervisors were present when the lockout policy was discussed and he learned the safety policy required the shuttle belt be locked out whenever workers were in the unprotected west end.

[T24] In the supervisors' depositions, they both, albeit reluctantly, acknowledged the extremely hazardous nature of work done in and around the energized shuttle belt and their awareness of numerous ways a worker could be injured through amputation of body parts or even loss of life. However, they denied knowing the sheave wheel, which severed Mr. Bertagnolli's foot, was unguarded. They also denied they had knowledge of any company policy requiring the shuttle belt to be locked out under the cireumstances which existed on the night of the accident, Mr. Bertagnolli requested a union steward, or they threatened to terminate his employment if he did not work as instructed.

[125] The supervisors argued Mr. Ber-tagnolli offered no evidence they had actual knowledge of the dangerous condition and presented only mere inferences drawn from alleged violations of safety policies and practices which were insufficient to create a material issue of fact in the face of their testimony they had no such knowledge. Smith, 898 P.2d 712. This argument fails to persuade us. -It is directed at the narrow issue of the unguarded sheave wheel and ignores evidence of the general risks of working in the area of the shuttle belt. The supervisors' testimony could be interpreted by the fact-finder as proving they knew of the broader dangers of the shuttle belt area. Mr. Ber-tagnolli is entitled to have a jury determine whether that evidence, together with the evidence presented with regard to their intentional acts, demonstrates the supervisors "intentionally act(ed) to cause physical harm or injury" and their actions constituted willful and wanton misconduct.

[426] We conclude the district court viewed the issues too narrowly and failed to address the evidence which created questions of fact concerning the supervisors' knowledge of the general risks posed by the shuttle belt. With this larger question in mind, we find multiple issues of material fact existed which require resolution by the fact-finder before judgment can be properly rendered in this matter. Case, 776 P.2d 188. Consequently, the co-employee supervisors were not entitled to judgment as a matter of law.

[127] Reversed and remanded for further proceedings consistent with this opinion.

      . Section 27-14-104(a) (emphasis added) as recreated in 1986 read as follows:
      (a) The rights and remedies provided in this act for an employee and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer making contributions required by this act, or his employees acting within the scope of their employment, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

      . This case went on to hold the claim was precluded because the employee failed to comply with the Wyoming Governmental Claims Act, a separate statutory provision having no application to Mr. Bertagnolli's claim.


author: GOLDEN, Justice.

text:
    2003 WY 51
    Sean Robert ECKENROD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-10.
    Supreme Court of Wyoming.
    April 25, 2003.

      Kenneth M. Koski, Wyoming State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel, Representing Appellant. Argument by Ms. Kerin.
    Hoke MacMillan, Wyoming Attorney General; Paul S8. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Sean W. Scoggin and Julie Nye Tiedeken, Special Assistant Attorneys General, Representing Appellee. Argument by Ms. Tiedeken.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] During an investigation of illegal narcotics trafficking, Appellant Sean Eicken-rod confessed to investigators the location of a large quantity of marijuana he intended to sell. His motion to suppress this evidence was denied, and he entered a conditional guilty plea that resulted in a 180-day jail sentence followed by an eight-year probation sentence. He appealed the denial to suppress, contending that he was arrested without probable cause during the investigation when an officer approached him with a drawn gun, he was escorted across the street and questioned after being read his Miranda rights, confessed involvement, and was then handcuffed and transported to the sheriff's office.

[12] We affirm.

ISSUES

[13] Eckenrod presents this statement of the issues for our review:

I. Whether the trial court erred in denying the motion to suppress statements and evidence?
II. Whether the trial court erred in denying the motion to suppress search and seizure, as the seizure of Appellant violated Appellant's constitutional rights?

The State rephrases the issues as:

I. Did the trial court correctly find that the detention of Appellant was proper and was not an unreasonable seizure in violation of his constitutional rights?
II. Did the trial court properly find Appellant's statements to be voluntarily made after he was properly given Miranda warnings?

FACTS

[T4] The Wyoming Division of Criminal Investigation (DCI) had received information that Eckenrod was involved with the distribution of twenty pounds of marijuana provided earlier in the year by Moises Banda Rascon. On March 17, 2001, Eekenrod was believed to have still possessed sixteen pounds and owed the original source $8,000.00. DCI had identified that source as a Hispanic male named Elon. The information indicated that, in a conversation with Cory Morrison, Eckenrod referred to a pound of marijuana as a "cookie."

[T5] Working with DCI as an undercover agent, Gillette Police Department Officer Adam Edmondson went to Eekenrod's home at about 10:00 p.m. on March 17, 2001, on the pretense of collecting the $8,000.00 for Elon. The officer wore a tape-recorder which failed to capture the events that night. Two other agents, Peters and Wasson, were to observe from a distance and, if Officer Edmondson "had trouble" or "something had gone wrong," he was to remove his baseball cap.

[16] A party was underway at Ecken-rod's home that night, and about twenty people were in and around the home. Officer Edmondson and Eckenrod met outside the home by the driveway under a streetlight, and Edmondson tried to convince Eckenrod that he had been sent by Elon. Ecekenrod stated that he did not know what he was talking about and began to question the officer. Believing that Eckenrod knew Edmondson was a police officer, Edmondson raised his baseball cap. Agents Peters and Wasson ran up on foot to the pair. Agent Peters approached with his gun drawn, identified himself as a DCI agent, grabbed Eck-enrod's arm, and patted him down for weapons. None were found, and he released Eckenrod and immediately "walked Ecken-rod across the street and conducted an interview with him."

[T7] Eckenrod was moved across the street and placed under another street light. Agent Peters testified he told Eckenrod that they knew he had been dealing with Moises Banda Rascon, had spoken with Cory Morrison about marijuana still in Eckenrod's possession, Eckenrod was expecting Elon to come and collect money, and the agents wanted to speak with Eckenrod about it. Agent Peters testified that he then advised Eckenrod of his Miranda rights, and Eeken-rod agreed to talk with officers. Eckenrod told them that he knew what they were talking about, used the term "cookie," knew Moises Banda Rascon, and asked "hlypo-thetically what happens if I tell you where the marijuana is?"

[T8] Eckenrod testified that he was questioned for about fifteen minutes before he was read his Miranda rights, and did not agree to talk with officers, but did ask some "hypothetical" questions. Eckenrod agreed that he then did admit his involvement because he thought he was under arrest and was assured his cooperation would help him. The agents testified that while they talked with Eckonrod on the street for about ten to fifteen minutes, the partygoers were milling about, yelling at the officers, and some had called them names. Eckenrod was then handcuffed and taken to the sheriffs office where the interview was continued. He consented to searches of his wallet, home, vehicles and a storage shed. The storage shed contained sixteen pounds of marijuana.

[T9] Ecekenrod agreed to cooperate with agents and was not formally arrested until May 8, 2001. Eckenrod filed a motion to suppress his statements and evidence on grounds that he had been arrested without probable cause. After an evidentiary hearing, the trial court determined that Ecken-rod's initial encounter with the undercover officer, Edmondson, was a consensual encounter that did not involve the Fourth

Amendment. The trial court then ruled in relevant part:

When [Officer Edmondson] took off his ball cap and Agent Peters came up to the Defendant with his gun drawn, this changed the encounter to a detention. The initial detention represents a seizure of the person which does implicate the Fourth Amendment requiring the presence of specific, articulable facts and rational inferences giving rise to a reasonable suspicion that a person has committed or maybe committed a crime. Terry v. Oko, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is clear that the Defendant, at this point, was seized; "In view of all the cireumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." U.S. v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The Defendant was moved across the street and even the agent knew that this was a "custodial" detention as he immediately read to the Defendant his Miranda rights. The Defendant agreed that he understood his rights and agreed to talk with the officers. In looking at the reasonableness of this investigatory detention, it appears that the officers' actions were justified at the inception and were related in seope to the circumstances which justified the interference in the first place. Putnam v. State, 995 P.2d 632, 637 (Wyo0.2000).

[T10] The motion to suppress was denied, and Eckenrod entered a conditional guilty plea to two counts and received a 180-day jail sentence followed by an eight-year probation term. This appeal followed.

DISCUSSION

Standard of Review

[T11]l Generally, we do not disturb a trial court's evidentiary rulings unless the court has clearly abused its discretion. Wilson v. State, 874 P.2d 215, 218 (Wyo. 1994). "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). We give deference to the trial court's findings of fact on a motion to suppress unless they are clearly erroneous, recognizing that court has had the opportunity to assess the credibility of witnesses, weigh the evidence and make the necessary inferences, deductions and conclusions. Jones v. State, 902 P.2d 686, 690 (Wyo.1995) (citing Wilson, 874 P.2d at 218). Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law that we review de novo. Wilson, at 218.

[T12] Warrantless searches and seizures are per se unreasonable under both the Fourth Amendment of the United States Constitution and Article 1, Section 4, of the Wyoming Constitution; however, an arrest without a warrant is reasonable if there is probable cause to believe that a crime was committed and it was committed by the suspect. Ostrowski v. State, 665 P.2d 471, 476 (Wyo.1983) (citing Michigan v. DeFillippo, 448 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 348 (1979)); see also Dickeson v. State, 848 P.2d 606, 611 (Wyo.1992). A person has been seized within the meaning of the Fourth Amendment if, "in view of all the cireum-stances surrounding the incident, a reasonable person would have believed that he was not free to leave." Wilson, 874 P.2d at 220 (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). This test "is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person." McChesney v. State, 988 P.2d 1071, 1074-75 (Wyo.1999) (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1551, 118 L.Ed.2d 690 (1991)).

[113] In evaluating whether police-citizen encounters are constitutionally valid, we have identified three categories or tiers of interaction between police and citizen:

[1] The most intrusive encounter, an arrest, requires justification by probable cause to believe that a person has committed or is committing a crime. [2] The investigatory stop represents a seizure which invokes Fourth Amendment safeguards, but, by its less intrusive character, requires only the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime. [8] The least intrusive police-citizen contact, a consensual encounter, involves no restraint of liberty and elicits the citizen's voluntary cooperation with non-coercive questioning.

Wilson, 874 P.2d at 220 (citations omitted).

Validity of Detention

[T14] Although Eckenrod does not agree that the initial encounter between himself and Officer Edmundson was consensual, he raises no issue concerning it on grounds that it should be considered an arrest requiring probable cause, or that it was an investigative detention unsupported by reasonable suspicion, and we agree that the officer's initial contact with Eckenrod by appearing at the door of his home in an undercover capacity is not at issue. We, thus, focus on the intrusiveness of the agents' actions at three other discrete times where it appears the nature of the encounter changed. First, we examine the nature of the encounter when Agent Peters approached Eckenrod with a drawn gun, grabbed him, and conducted a weapons search; second, we consider the cireumstances present that caused the agents to move Eckenrod across the street and advise him of his Miranda rights; and, lastly, we consider the nature of the encounter that resulted when Eckenrod was handcuffed and transported to the sheriff's office.

[115] The district court ruled, and the State agrees, that the nature of the encounter remained a valid seizure under Terry after Agent Peters arrived on the seene with a drawn weapon. We disagree with the assessment that the entirety of the encounter was a Terry seizure for the purpose of investigating Eckenrod's criminal involvement in a drug conspiracy. We nevertheless believe that, as the nature of the encounter changed, the totality of the cireumstances indicate that Ecekenrod was not arrested without probable cause.

[T16] Agent Peters testified that, in response to seeing Edmondson signal that he was in trouble and something had gone wrong, Agent Peters approached Eckenrod with a drawn gun, grabbed him, and conducted a weapons search. These facts require that we examine whether the agent's use of force for safety reasons transformed the encounter into an arrest requiring probable cause, We have previously considered the use of intrusive measures in making Terry stops and held that police officers may draw their weapons without transforming an otherwise valid Terry stop into an arrest. Brown v. State, 944 P.2d 1168 (Wyo.1997). Brown agreed with the following statement:

While Terry stops generally must be fairly nonintrusive, officers may take necessary steps to protect themselves if the cireum-stances reasonably warrant such measures. "[Tlhe use of guns in connection with a stop is permissible where the police reasonably believe [the weapons] are necessary for their protection." United States v. Merritt, 695 F.2d 1263, 1273 (10th Cir. 1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). spore ok ok
This holding is consistent with the recent trend allowing police to use handcuffs or place suspects on the ground during a Terry stop. Nine courts of appeals, including the Tenth Circuit, have determined that such intrusive precautionary measures do not necessarily turn a lawful Terry stop into an arrest under the Fourth Amendment.

Id. at 1172 (quoting United States v. Perdue, 8 F.3d 1455, 1462-68 (10th Cir.1993)).

[T17] We examine whether the seizure by Agent Peters was justified at the inception, and whether articulable facts existed to demonstrate that Agent Peters had a reasonable suspicion to justify the intrusive measures used to ensure his and the other agents' safety. Brown, 944 P.2d at 1171.

We recently summarized our review:

[We have a dual inquiry for evaluating the reasonableness of an investigatory stop: (1) whether the officer's actions were justified at the inception; and (2) whether it was reasonably related in seope to the cireamstances that justified the interference in the first instance. An officer's conduct is judged by an objective standard which takes into account the totality of the circumstances. In applying this test, the Court has consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry. The government has the burden of demonstrating that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.

Damato v. State, 2003 WY 18, 19, 64 700, 19 (Wyo.2003) (citations and quotation marks omitted).

[T18] Based on seeing the prearranged signal of trouble or that something had gone wrong, Agent Peters had an objectively reasonable basis to suspect that Eckenrod was threatening the safety of Officer Edmundson who had represented himself as a member of the drug conspiracy. Although Edmundson gave the signal for reasons other than to indicate that his safety was jeopardized, Agent Peters acted appropriately in light of the information he possessed. The facts show that Agent Peters feared for Officer Edmundson's safety, and this fact justified the display of some force and was not unreasonable under the cireumstances.

[119] The district court concluded that a custodial seizure occurred when the agents moved Eckenrod across the street and advised him of his Miranda rights. The district court determined the seizure to be an investigative detention supported by reasonable suspicion; presumably, the reasonable suspicion was the information that Eckenrod was involved in a marijuana trafficking conspiracy. Eckenrod contends that having been approached by an agent with a drawn weapon, grabbed, searched, moved across the street, and then advised of his Miranda rights, he justifiably assumed that he was under arrest and not free to leave. He contends that the district court erred in failing to conclude that he had been arrested without probable cause.

[T20] Because the district court concluded that the agents moved Eckenrod across the street, we must examine whether this forcible move was an arrest. The ree-ord shows that Eckenrod was moved after Agent Peters learned that Eckenrod was not carrying a weapon and safety concerns were no longer an issue to any of the agents because all three law enforcement agents had encircled an unarmed Eckenrod. However, the record shows that another safety issue factor had arisen which justified this intrusive measure as a reasonably necessary precaution and did not change the lawful Terry stop into an unlawful arrest without probable cause. Agent Peters testified that he believed that it was his idea to move across the street, because persons attending the party had begun to yell insults at the three agents and were calling them names like "pig," ete. Both agents testified that it seemed appropriate to move away from the hostile crowd and place some distance between the men and the crowd. Courts generally accept that, although rare, factual situations do occur that permit a "transport" detention without transforming a Terry stop into an arrest requiring probable cause. People v. Harris, 15 CalSd 384, 124 Cal. Rptr. 536, 540 P.2d 632, 636 (1975); 4 Wayne R. LaFave, Search and Seizure § 9.2(g) at 84 (3d ed.1996). Harris stated that when an investigating officer is confronted by a hostile crowd, the Fourth Amendment does not mandate that an investigating officer choose between continuing the investigation at the risk of personal safety or abandoning his investigation. Harris, 124 CallRptr. 586, 540 P.2d at 636. We agree that the agents' precautionary measure here was justified. We also find that the trial court properly concluded that the officers' advising Ecken-rod of his Miranda rights indicated that he was a criminal suspect being subjected to custodial interrogation; however, being placed in police "custody" for purposes of Miranda can occur before a suspect has been arrested. Perdue, 8 F.3d at 1464. We hold the trial court properly concluded that this part of the encounter was a valid Terry stop.

[121] Finally, the district court did not make findings or conclusions about

the agents' handcuffing and transporting Eckenrod to the sheriffs office for further interrogation. The State contends that this was part of the investigative detention; however, handcuffing and transporting a suspect is an arrest if no cireumstances otherwise justify the removal. Harris, 124 Cal.Rptr. 536, 540 P.2d at 635-36. After receiving advice of his Miranda rights, Eckenrod agreed to speak with the agents and confirmed the information the agents had concerning his involvement in the drug conspiracy. The question is whether Eckenrod was arrested with probable cause when he was handcuffed and transported to the sheriff's office. In deciding whether probable cause is sufficient to justify a warrantless arrest, it must be determined that "the facts and cireumstances within the peace officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a reasonably cautious or prudent man to believe that the person arrested has committed * * * an offense." Ostrowski, 665 P.2d at 476.

[122] Here, the agents were investigating Eckenrod's involvement in a drug conspiracy based upon information from a recorded telephone conversation and a confidential informant. The agents had probable cause to arrest Eckenrod when he confirmed the agents' information and indicated that he would show them where the marijuana was being stored, and we find no constitutional violation occurred by the agents' handcuffing him and transporting him to the sheriffs office.

[123] Having examined the nature of the encounter at each point where it changed, we conclude that Eckenrod's seizure was a constitutionally valid investigative detention until his statements provided probable cause for his warrantless arrest. We affirm the district court's order denying the motion to suppress on grounds that he had been unlawfully arrested.

[T24] Eckenrod contends that this Court has indicated that the Wyoming Constitution may provide greater protection when the question is one of a person's seizure, and because the record does not show that at the suppression hearing any actual, articulable reasons were given for his detention, his convictions should be reversed. The record does not support this assertion, and as Eck-enrod does not make any other argument, we decline to consider the lawfulness of his detention and arrest under the state constitution.

Voluntariness

[T25] Eckenrod contends that although he was provided with his Miranda rights, the agents' aggressiveness created a coercive atmosphere that frightened him and further induced his confession by promising to help him if he cooperated. He claims that these circumstances render his statements involuntary. Our standard of review for involuntariness claims states that:

[tlo comply with Miranda, law enforcement must advise an accused of his rights before any of the accused's statements, made during custodial interrogation, can be used against the accused at trial. Failure to comply with these procedural safeguards requires the court to suppress such statements. We review the record to determine whether the trial court could conclude, given the totality of the cireum-stances, that the police sufficiently followed Miranda.
Moreover, even when Miranda has been complied with, the United States Constitution, amendments V and XIV, as well as the Wyoming Constitution, art. 1, §§ 6 and 11, require admissions and statements to be voluntary. To be voluntary, the defendant's statements must result from "free and deliberate choice rather than intimidation, coercion, or deception." Because we presume a defendant's statements to be involuntary, the burden rests on the State to show, by a preponderance of the evidence, that the defendant's statements were voluntary. Once the State has met its burden and rebutted the presumption of involuntariness, the defendant may be required to present evidence demonstrating the involuntariness of his statements. If such statements resulted from coercion, then the statements are inadmissible at trial for any purpose because their validity is suspect.
Voluntariness is a legal question; thus, we review the ultimate issue, whether a defendant's statements were voluntary, de novo. On review, however, we will not disturb the trial court's findings of fact - unless clearly erroneous. We look to the totality of the cireumstances to determine if the defendant's statements were voluntary.

Mitchell v. State, 982 P.2d 717, 720-21 (Wyo. 1999) (citations omitted).

[126] In considering the totality of the cireumstances, we consider:

[The atmosphere and events surrounding the elicitation of the statement, such as the use of violence, threats, promises, improper influence or official misconduct, the conduct of the defendant before and during the interrogation and the defendant's mental condition at the time the statement is made. ck, #k
[A] confession offends due process if the suspect's will was overborne by the police and the suspect's capacity for self-determination was seriously impaired.

State v. Evans, 944 P.2d 1120, 1125 (Wyo. 1997). The district court concluded that Eckenrod was immediately read his Miranda rights and agreed that he understood his rights and agreed to talk with the officers. In reviewing the record, we believe that the district court properly characterized Ecken-rod's actions as agreement. Although he disputed that he voluntarily made statements, the record indicates that Ecekenrod agreed that the agents explained the information they had concerning his involvement, had been advised of his right to remain silent, and Eckenrod asked hypothetical questions concerning whether it would help if he cooperated with the officers, apparently being not so scared as to prevent him from exploring his options. Eckenrod does not claim that he did not understand his rights or the significance of confessing or did not have the mental capacity to understand his right to remain silent. The agents testified that Eckenrod was told that his cooperation would be reported to the prosecution and this did occur. We have previously rejected that this "report-of-cooperation" statement is improper inducement that shows one's will was overborne. Vena v. State, 941 P.2d 83, 37-38 (Wyo.1997). We hold that Eckenrod's statements were voluntary. We affirm the order denying the motion to suppress.