Happenings

June 23, 2017

Our own Patrick M. Brady has published an article about Post-Accident Conduct as a Basis for Punitive Damages. 
Click Here to View


June 20, 2017

Congratulations to Kay Lynn Bestol for being named again as one of the Top 50 Attorneys by Super Lawyers


Published 4-12-17 by DRI

And The Defense Wins

George E. Powers, Jr., and Jane M. France

  DRI members George Powers and Jane M. France of Sundahl, Powers, Kapp & Martin, LLC in Cheyenne, Wyoming, successfully defended a medical malpractice lawsuit against a physician in Worland, Wyoming, in Anderson v. Zimmerman. Plaintiff, who demanded $4.3 million dollars at trial, filed suit against the doctor and the local hospital alleging that her husband had died due to excessive administration of Dilaudid (hydromorphone). Her husband had come to the emergency room of Washakie Medical Center for treatment of severe abdominal pain. The defendant, a family practice physician under contract with the hospital to cover the emergency room, examined the patient, diagnosed a kidney stone and prescribed Dilaudid to control the pain. During the examination the patient also reported a history of atrial fibrillation and laboratory studies showed a slightly low potassium level. The patient received a total of 4 milligrams of Dilaudid before reporting that his pain levels had dropped significantly and being discharged home. Approximately four hours after discharge, the wife found her husband dead in bed. A subsequent autopsy showed that the post-mortem blood level of Dilaudid was only 9.5 nanograms per milliliter and failed to discover any other injury or disease process to account for the death, leading the pathologist to conclude that the cause of death was undetermined. Nevertheless the wife asserted that the cause of death was related to the respiratory depressive effects of the Dilaudid. After suit was filed, the hospital settled quickly for an undetermined amount. At trial the defense contended that the medical care was reasonable and there was no evidence to support the notion that the Dilaudid had caused or contributed to the death. Expert witnesses presented testimony regarding standards of care, pathology, toxicology and pharmacology. After a 10-day trial, the jury returned a defense verdict. Plaintiff filed a motion for new trial based on alleged juror misconduct, which was denied. Thereafter, the plaintiff appealed to the Wyoming Supreme Court. However, in January 2017 plaintiff withdrew her appeal voluntarily and without payment.

Mr. Powers and Ms. France are both partners in the firm and are active DRI and Defense Lawyers Association of Wyoming members. To learn more about DRI, an international membership organization of attorneys defending the interests of business and individuals in civil litigation, visit dri.org.

© 2017 DRI. All rights reserved.


February 10, 2017

DEFENSE VERDICT IN MEDICAL MALPRACTICE LAWSUIT

George Powers and Jane France successfully defended a medical malpractice lawsuit against a physician in Worland, Wyoming.  Plaintiff filed suit against the doctor and the local hospital alleging that her husband had died due to excessive administration of Dilaudid (hydromorphone).  Her husband had come to the emergency room of Washakie medical Center for treatment of severe abdominal pain.  The defendant, a family practice physician under contract with the hospital to cover the emergency room, examined the patient, diagnosed a kidney stone and prescribed Dilaudid to control the pain.  During the examination the patient also reported a history of atrial fibrillation and laboratory studies showed a slightly low potassium level.  The patient received a total of 4 milligrams of Dilaudid before reporting that his pain levels had dropped significantly and being discharged home.  Approximately four hours after discharge, the wife found her husband dead in bed.  A subsequent autopsy showed that the post-mortem blood level of Dilaudid was only 9.5 nanograms per milliliter and failed to discover any other injury or disease process to account for the death, leading the pathologist to conclude that the cause of death was undetermined.  Nevertheless the wife asserted that the cause of death was related to the respiratory depressive effects of the Dilaudid.  After suit was filed, the hospital settled quickly for an undetermined amount.  At trial the defense contended that the medical care was reasonable and there was no evidence to support the notion that the Dilaudid had caused or contributed to the death.  Expert witnesses presented testimony regarding standards of care, pathology, toxicology and pharmacology.  Plaintiff asked for damages totaling almost $4.3 million.  After a ten day trial, the jury returned a defense verdict.  Plaintiff filed a motion for new trial based on alleged juror misconduct, which was denied.  Thereafter, the Plaintiff appealed to the Wyoming Supreme Court.  However, in January 2017 Plaintiff withdrew her appeal voluntarily and without payment.

January 1, 2017

The Law Firm of
Sundahl, Powers, Kapp & Martin, LLC
is pleased to announce that
JANE M. FRANCE
has become a Partner with the firm.


October 1, 2016

Diamond State Insurance Company v. LeClair Irrigation District

George E. Powers, Jr. successfully represented a Wyoming irrigation district in connection with the settlement of a complex insurance coverage dispute. The district had been sued in federal court by the United States and two Indian tribes for alleged violations of the Clean Water Act. In addition, the district was also sued by the tribes in tribal court for trespass and other tort claims. The insurance company refused to defend the district, denied coverage for the claims and filed a declaratory judgment action, citing a policy exclusion for pollution and other policy defenses. The settlement of the insurance coverage dispute generated sufficient funds to pay for a river restoration plan that had been ordered following entry of an adverse judgment in the Clean Water Act case. The district also secured dismissal of the pending tribal court lawsuit as well.


February 10, 2016

Wyoming Supreme Court Overrules Precedent, Adopts Minority Position
Collins v. COP Wyo., LLC, 2016 WY 18

The Wyoming Supreme Court overruled its holding in Anderson v. Solvay Minerals, Inc., 3 P.3d 236 (Wyo. 2000) through its recent decision in Collins v. COP Wyo., LLC, 2016 WY 18.  Raymond W. Martin and Jane M. France represented COP Wyoming, LLC and Roger Ross.

Charley Collins and his son Brett Collins were employed by COP Wyoming.  Roger Ross was a supervisor for the company.  On August 20, 2012, all three individuals were working on a job site.  Mr. Ross was operating a track hoe excavator when at the time he placed the bucket into the bottom of the trench it lurched toward the back of the trench box and accidently struck and killed Brett Collins.  Charley did not see the accident as he was preparing pipe at the ground surface level approximately 15’ distance from the trench box, but upon realizing his son had been struck, he promptly entered the box and attempted to perform first aid upon his son.  Brett Collins’ estate received death benefits from Worker’s’ Compensation.  Charley Collins sued COP Wyoming and Mr. Ross for negligently inflicting emotional distress on him.  The district court, relying on Anderson, dismissed the action, finding that the emotional distress claim was barred by the Wyoming Workers’ Compensation Act because it was derivative of the covered injury.

The Wyoming Supreme Court reversed and specifically overruled Anderson.   It held “…emotional distress claims are direct claims between the alleged tortfeasor and the injured party, are not derivative of the associated covered injury or death, and are not necessarily barred by worker’s compensation immunity.”  This rule is now contrary to the majority rule, which holds that “an independent claim for negligent infliction of emotional distress is barred by worker’s compensation if it arises from a covered injury.” See e.g. Maney v. Louisiana Pac. Corp., 15 P.3d 962 (Mont. 2000)


February 9, 2016

Sky Harbor Air Serv. Cheyenne Reg’l Airport Bd., 2016 WY 17

The Wyoming Supreme Court recently issued a decision in the case of Sky Harbor Air Service, Inc. v. Cheyenne Regional Airport Board, where the court affirmed three district court decisions in favor of the Airport, SPKM’s client.  Sky Harbor was the tenant on a fixed based operator (“FBO”) lease at the Airport and had stopped paying rent on that lease in 2010.  The Airport filed a forcible entry and detainer (“FED”) action in the Laramie County Circuit Court, and an ejectment action in the District Court for the First Judicial District.  Prior to the lawsuits giving rise to this appeal, Sky Harbor was also the tenant on a paint shop lease.  Sky Harbor defaulted on that lease in 2008.  After Sky Harbor sued the Airport, and other defendants, in the federal District Court for Wyoming the Airport counterclaimed for unpaid rent, assorted fees & expenses, and attorneys’ fees on the paint shop lease.  The federal court granted summary judgment to the Airport for $429,000.  Sky Harbor appealed to the Tenth Circuit, and the Tenth Circuit affirmed in Sky Harbor Air Serv. v. Reams, 491 Fed. Appx. 875 (10th Cir. 2012).  The Airport’s subsequent state court litigation involved many factual matters shared with the federal paint shop litigation.

Sky Harbor’s appeal to the Wyoming Supreme Court arose from three underlying actions.  First, the Airport brought a forcible entry and detainer action to remove Sky Harbor from the FBO lease.  The Laramie County Circuit Court decided in favor of the Airport in the forcible entry and detainer action and ordered Sky Harbor to pay all back rent.  Sky Harbor posted a bond pending appeal to the district court, and the Airport ultimately secured the bond proceeds and all post bond rent paid into the Court until the lease expiration issue was resolved in the Airport’s favor .  The Airport also filed an ejectment action in district court to recover additional damages from Sky Harbor.  The District Court granted partial summary judgment to the Airport in the ejectment action and affirmed the Circuit Court in the FED action.  Sky Harbor appealed the FED, ejectment, and garnishment decisions.

Sky Harbor’s principle argument on appeal was that the federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”) deprived the state courts of jurisdiction over the Airport’s claims because Sky Harbor had assigned its lease to a bank as collateral for a small business loan.  FIRREA requires claims involving the assets, acts or omissions of a bank that is in FDIC receivership to be resolved through a statutory process administered by the FDIC.  Sky Harbor’s lender entered FDIC receivership after Sky Harbor’s default on the FBO lease.  Sky Harbor argued that because it had assigned the FBO lease to the bank, the Airport’s claims involved the asset of a financial institution in FDIC receivership.  The Court rejected Sky Harbor’s FIRREA arguments, recognizing that the Airport’s claims were based solely on Sky Harbor’s failure to pay rent on the FBO lease.  FIRREA did not apply because the Airport’s claims did not involve the assets, acts, or omissions of a bank in FDIC receivership.  Sky Harbor’s failure to pay rent could not be excused simply because it had borrowed money from a bank that had entered FDIC receivership.  There was no requirement to exhaust FIRREA’s administrative remedies.

Sky Harbor’s other arguments included a claim that the District Court should have joined the lender as a party, that it did not get sufficient discovery, and that there was insufficient evidence to support the District Court’s decisions.  The Court rejected all of these arguments.

Partner Ray Martin litigated this case below, as well as the paint shop case in federal court, and argued this case before the Supreme Court. Jane France and Patrick Brady contributed to the brief.  The full text of the Court’s opinion can be found at http://www.courts.state.wy.us/Documents/Opinions/2016WY17.pdf.


December 11, 2015

The Law Firm of
Sundahl, Powers, Kapp & Martin, LLC
is pleased to announce that
Leigh Anne Manlove
has become an Associate with the firm.

Leigh Anne Manlove is a graduate of the University of Wyoming and the University of Wyoming College of Law.  Leigh Anne has been practicing law in Wyoming for over fifteen years and has experience in both private practice and public service.

Sundahl, Powers, Kapp & Martin, LLC, continues to serve its individual, business and governmental clients throughout Wyoming with particular emphasis on matters involving federal and state litigation, administrative, employment, construction, transportation, insurance, appellate practice and public utilities.

Members of the Firm
Partners
John A. Sundahl                      George E. Powers, Jr.        Paul Kapp 
Raymond W. Martin                 Kay Lynn Bestol
Associates
Jane M. France               Patrick M. Brady            Leigh Anne Manlove


December 11, 2015

SUNDAHL, POWERS, KAPP & MARTIN, LLC NAMED TOP LITIGATION LAW FIRM

            The Cheyenne law firm of Sundahl, Powers, Kapp & Martin, LLC, was recently named as one of the top litigation law firms in Wyoming by the publishers of Super Lawyers®.  Selection was based on the number of lawyers in the firm, who have been selected for inclusion on a Super lawyer list, as well as on a combination of metrics including quality factors, such as the number of years listed, inclusion on a top list and average scores awarded by the editors blue ribbon panel.  Sundahl, Powers, Kapp & Martin, LLC, was selected as Wyoming’s top litigation law firm in the small firm category (2-10 attorneys).  

            Sundahl, Powers, Kapp and Martin, LLC is an eight person firm with five partners and three associates.  All of the firm’s partners have been listed as Super Lawyers in their respective areas of emphasis.  John Sundahl, George Powers and Paul Kapp have been recognized for their work in personal injury litigation, Ray Martin for his work in construction litigation and Kay Lynn Bestol for her work in civil litigation.  Associates include Jane France, Patrick Brady and Leigh Anne Manlove.  The firm provides legal services to its clients throughout Wyoming in both state and federal courts.  


October 6, 2015

In the Matter of the Worker’s Compensation Claim of Adalberto Gonzalez v. Reiman Corp., 2015 WY 134, 357 P.3d 1157 (Wyo. 2015)

Raymond W. Martin and Jane M. France recently obtained a victory before the Wyoming Supreme Court in favor of SPKM’s client in a worker’s compensation dispute. The employer originally hired the employee in 2007.  During the initial hiring meeting, the employee completed a number of hiring documents, including an application for employment, a new hire/rehire report, a W-4 form and a Form I-9.  At the meeting, he also presented a social security card and a permanent resident card, but the employer did not make copies of the documents because it was unable to do so at the construction job location.  The employee was terminated later in 2007.  He was hired again in April 2008.  On rehire, he was not required to complete hiring documents because company policy did not require new applications for employees who had been employed there within the last six months.  Sometime after the rehire, the company performed an internal audit and discovered that it did not have Form I-9s on file for all of its employees.  The employee completed a new Form I-9 in May 2010, and at that time, the superintendent checked the employee’s social security card and permanent resident card.   In litigation, the employee admitted that the documents he presented to the employer were false. 

In August 2011, the employee was injured during the scope of his employment and applied for worker’s compensation benefits.  The Wyoming Workers’ Compensation Division originally denied benefits because the employee had not submitted documentation of his residency and authority to work in the United States to the Division.  Both the employee and employer objected to the Division’s final determination and requested a hearing.  At the contested case hearing, the employee withdrew his objection to the Division’s ruling.  The employer maintained its position and the Office of Administrative Hearings (OAH) concluded that the employer reasonably believed that the employee was authorized to work in the United States and therefore he was an employee as that term is defined by the Wyoming Worker’s Compensation Act.  The district court affirmed the OAH’s decision.

The Wyoming Supreme Court also affirmed the decision.  The question was “simply whether the documents in the employer’s possession, whatever those might be, support the employer’s reasonable belief … that the injured employee was legally authorized to work in the United States.”  The Court determined the employer reasonably believed, at the time of the employee’s hiring and injury, based on the documents in the employer’s possession, that the employee was legally authorized to work in the United States, and was therefore an “employee” within the definition of W.S. § 27-14-102(a)(vii). 

The documents in the employer’s possession at the time of rehire included the 2007 employment application, 2007 new hire/rehire report and 2007 W-4.  The employee listed his admittedly false social security number on those documents and the employer never received any information or indication that the employee was not authorized to work in the United States.  The documents in the employer’s possession at the time of injury included the 2010 I-9, the rehire documents and W-2 forms from 2008-2011.

This case is the third in a recent “trilogy” of suits involving documentation necessary to support an employer’s reasonable belief that an alien is authorized to work the United States.  See L & L Enters. v. Arellano (In re Arellano), 2015 WY 21, 344 P.3d 249 (Wyo. 2015) and Herrera v. Phillipps, 2014 WY 118, 334 P.3d 1225 (Wyo. 2014).

The full text of the Court’s opinion can be found here: http://www.courts.state.wy.us/Documents/Opinions/2015WY134.pdf


August 17, 2015

George has been named Best Lawyers’ 2016 Cheyenne Personal Injury Litigation – Defendants “Lawyer of the Year”.

Kay Lynn has been named The Best Lawyer in America in the following practice area(s):

  • Insurance Law
  • Personal Injury Litigation – Defendants
  • Product Liability Litigation – Defendants


July 28, 2015

Congratulation to partner, Kay Lynn Bestol, who has made Benchmark’s Top 250 Women in Litigation for the fourth year in a row!  Click here for details.


June 26, 2015

Ray Martin recently obtained a defense judgment in a bench trial before Judge Kautz.  Plaintiffs sued the defendants, who operated a hay grinding business, for damages to their property from a fire allegedly caused by the hay grinder.  The defendants haul their hay grinder to sites designated by customers and grind feed as directed.  The hay grinder has a large tub that receives hay bales.  Below the tub is a hammer mill.  As the bales drop from the tub to the hammer mill, the hammers pulverize and grind the hay.  The feed drops through a metal screen onto a conveyer belt, which conveys and drops the feed wherever the operator directs. 

On March 28, 2012, the defendant ground hay and cornstalks at the plaintiffs’ feedlot.  He completed the grinding that day and left.  On the following day, the plaintiffs’ son used a front-end loader to fill a feed truck with the ground feed.  After moving a number of loads of feed, he noticed that a fire had broken out in the ground feed pile.  The fire destroyed all of the ground hay, nearby stacked hay bales and part of a nearby barn.

The Court found that while the defendants owed plaintiffs a duty of care to maintain and safely operate the hay grinder, they did not owe a duty to locate the grinder away from the stacked hay bales or to warn the plaintiffs of the potential for fire if the feed were ground near the stacked hay.  The Court found that the defendants did not breach their duty to the plaintiffs nor were they the proximate cause of the fire.  Therefore, the Court did not reach the issue of damages, and judgment was entered in favor of the defendants.

May 26, 2015

Patrick Brady, an associate with the firm, took the oath of admission to the practice of law in Wyoming and is now authorized to practice law in all state and federal courts in Wyoming. Patrick was first admitted to practice in Colorado in 2014.


April 22, 2015

John Sundahl to present CLE to DLAW

John Sundahl will present a continuing legal education webinar entitled “Raw Data Production in Brain Injury Cases” to the Defense Lawyers Association of Wyoming (DLAW) on April 22, 2015 at 12:30pm.  Mr. Sundahl will discuss the data, including norms, test questions and test answers, that neuropsychologists and psychologists should produce and why that information should be produced directly to defense counsel.  Mr. Sundahl has briefed this issue in several courts in Wyoming and has also authored an article on the topic.  He has collected numerous court orders on the subject and was quoted extensively by a federal judge in one order compelling production.  The webinar is part of the free continuing legal education program provided by DLAW to its members. 


April 10, 2015

George Powers is invited to join the Association of Defense Trial Attorneys! He is the first member in Wyoming!

 www.adtalaw.com


March 23, 2015

District Court Grants Railway Company’s Motion to Dismiss

Jane M. France and George E. Powers, Jr. recently obtained an order dismissing tort claims against BNSF Railway Company in connection with the railroad’s transportation activities at an oil transloading facility.  BNSF delivered empty cars to their customer’s facility for loading and then transported the loaded cars to their ultimate destinations.  Plaintiffs alleged that noise, dust, odors and other impacts arising from these activities affected their neighboring property and alleged claims for nuisance, trespass, inverse condemnation and damages.

The Interstate Commerce Commission Termination Act (ICCTA) preempts state regulation of railroad transportation activities, and therefore, state law causes of action, that would have the effect of regulating railroad transportation are expressly preempted.   The District Court held that the railroad’s activities at the transloading facility fell within the definition of “transportation,” and therefore plaintiffs’ complaint constituted an attempt to regulate the transportation activities and was preempted by federal law.


March 6, 2015

Wyoming Supreme Court Affirms District Court’s Order Quashing Attempted Service and Dismissal of Case in Favor of SPKM Client

Dirks v. Jimenez, 2015 WY 36

Jane M. France and George E. Powers, Jr. recently obtained a victory before the Wyoming Supreme Court in favor of SPKM’s client in a personal injury suit.  The high court affirmed the district court’s decision quashing the plaintiff’s attempted service using the nonresident motorist service statute and dismissing the case as untimely.  Plaintiff attempted to serve defendant by sending a copy of the complaint to his address listed in the accident report, despite having more current information about his address in her possession.  Plaintiff also sent a copy of the complaint to the SPKM attorneys, who represented defendant in a previously dismissed, but related suit.  SPKM filed a motion to quash the attempted service and motion to dismiss on behalf of its client. 

The non-resident motorist statute requires that the plaintiff exercise due diligence in attempting to locate the defendant before means of a substitute service statute become available.  The Supreme Court held that plaintiff did not perform her due diligence before attempting service through the substitute service statute and that actual notice to defendant’s former attorneys was not sufficient to satisfy the strictly construed requirements of the nonresident motorist statute.


December 15, 2014

Patrick Brady joins SPKM

SPKM is pleased to announce that Patrick Brady has joined the firm as an associate attorney.  Patrick was born in Colorado, but has grown up all over the country. He served in the U.S. Army Reserve and the U.S. Army.  Patrick deployed to Iraq with the 1st Infantry Division twice.  While in the reserves he attended Colorado State University and graduated with a degree in political science and philosophy. He graduated with distinction from University of the Pacific, McGeorge School of Law in 2014.

While in law school he interned with the U.S. Court of Appeals for Veterans Claims, the Colorado Attorney General's Office, and the Colorado Office of Legislative Legal Services. Patrick also served as an associate articles editor with the McGeorge Global Business & Development Law Journal and published in the California Initiative Review.
He was a founding member of the McGeorge Space Law Society.

Patrick joined the firm in 2015 and is admitted to practice in Colorado, and is in the process of obtaining licensure in Wyoming.

In his spare time, Patrick enjoys traveling, hiking, fishing, camping, reading, and spending time with his six nieces and his nephew.

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Cheyenne, Wyoming 82001
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