Pursuant to Wyoming Governmental Claims Act’s (“WGCA”) notice-of-claim requirement, a claimant must provide a written notice of claim to the subject governmental entity within a two-year limitations period, as set forth in Wyoming Statute § 1-39-113(a).
The notice-of-claim requirement specified in Wyo. Stat. § 1-39-113(a), provides as follows:
(a) No action shall be brought under this act against a governmental entity unless the claim upon which the action
is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:
(i) Not reasonably discoverable within a two (2) year period; or
(ii) The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence.
The Morenos, the plaintiffs in a Wyoming medical malpractice case, had not complied with this requirement in pursuing their action against the defendant, Dr. Zimmerman. The district court entered judgment for Dr. Zimmerman and denied the Morenos’ motion to alter or amend that judgment or for a new trial. On appeal, the Morenos argued that the plain language of Wyo. Stat. § 1-39-113(a) shows that the notice-of-claim requirement applies only to suits brought “against a governmental entity.” Because the statute makes no mention of claims brought solely against a public employee, such as their action against only Dr. Zimmerman, they contended that the WGCA’s notice-of-claim requirement does not apply, and the district court thus erred.
Federal Appellate Court Opinion
The United States Court of Appeals for the Tenth Circuit (“Federal Appellate Court”) stated in its Opinion and Judgment filed on July 26, 2023: “As characterized by the Wyoming Supreme Court, the notice-of-claim requirement of
Wyo. Stat. § 1-39-113(a) is a “condition precedent” to bringing suit under the WGCA … failure to file a claim in compliance with the WGCA’s notice-of-claim requirement typically will result in dismissal.”
“The Wyoming Supreme Court has previously addressed the WGCA’s notice-of-claim requirement. We conclude that it has spoken with sufficient clarity regarding the coverage of the WGCA’s notice-of-claim requirement and demonstrated that it applies even when a claim is brought solely against a public employee . . . the Wyoming Supreme Court cases clearly discuss the notice-of-claims requirement by referencing its applicability to suits brought against public employees. Moreno, 2021 WL 4130532, at *3. Indeed, as we will see, the Wyoming Supreme Court—time and again—has expressly mentioned public employees or officers, along with governmental entities, in discussing the applicability of the notice-of-claim requirement, even though the statute only explicitly mentions governmental entities … there appear to be no Wyoming cases that have endorsed the reading of the WGCA’s notice-of-claim requirement that the Morenos advance here—and certainly not one from the Wyoming Supreme Court.”
The Federal Appellate Court concluded: “In sum, in our view, the Wyoming Supreme Court has spoken with sufficient
clarity regarding the coverage of the WGCA’s notice-of-claim requirement and demonstrated that it applies even when a claim is brought solely against a public employee. However, even if there were some ambiguity regarding this matter, we are comfortable predicting—based on the Wyoming Supreme Court’s existing notice-of-claim precedent—that it would determine that the notice-of-claim requirement applies to suits brought solely against a public employee.”
Source Moreno v. Zimmerman, M.D., No. 21-8066.
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