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Emulsified Asphalt Inc. v. Transportation Commission12/21/1998
Appeal from the District Court of Converse County Honorable Barton R. Voigt, Judge
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Second. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors in order that corrections may be made before final publication in the permanent volume.
This case presents the question whether an earlier specific statutory provision, WYO. STAT. § 24-2-101(e), consenting to the Transportation Commission's exposure to contract actions, has been impliedly repealed by a later general statutory provision in the Wyoming Governmental Claims Act, WYO. STAT. § 1-39-104(a), permitting any governmental entity to assert contract action immunity in any of the entity's properly executed contracts made pursuant to the entity's granted powers. Appellant Emulsified Asphalt, Inc. (Emulsified) brought suit against the Transportation Commission of Wyoming (Commission) on a contract the parties had entered into for highway construction. The Commission moved to dismiss the suit on grounds of sovereign immunity as provided for in the contract. The district court granted that motion and dismissed Emulsified's complaint.
We hold that the later enacted Wyoming Governmental Claims Act impliedly repealed the earlier enacted consent to suit provision in WYO. STAT. § 24-2-101(e), thus allowing the Commission to insert an immunity provision in its contract. In this case, however, the contractual immunity provision is ambiguous and ineffective against Emulsified. We reverse the dismissal and remand for further proceedings.
ISSUES
Emulsified presents these issues for our review:
Whether the district court erred in its construction and interpretation of the contract at issue?
Whether the sovereign immunity defense applies to a contract entered into between the Transportation Commission of Wyoming and a highway contractor?
The Commission believes the issues are:
1. Did the contract retain the state's sovereign immunity pursuant to WYO. STAT. § 1-39-104(a) for all contract claims?
2. Should the Court abolish the doctrine of sovereign immunity for contract actions in Wyoming?
3. If the district court does have subject matter jurisdiction, is the court nevertheless precluded from enforcing an "agreement to agree"?
FACTS
According to its complaint, Emulsified entered into a contract on December 7, 1995, with the Commission to reconstruct 10.4 miles of highway U. S. 87 for the State of Wyoming. This project was designated as the "Glenrock/Casper Project" (the contract). The parties also entered into two additional contracts, the McKinnon Road Project and the Newcastle Project. At the time that Emulsified bid on the contract it relied on the plans and specifications of the Commission and intended to substantially complete, and contends that it could have substantially completed, all three projects in 1996. At the time of bidding on the contract, Emulsified anticipated finishing the paving on the McKinnon Road Project before beginning the paving on the contract and also planned to finish the paving on the contract in time to complete the paving on the Newcastle Project before September 15, 1996. Emulsified contends that it was capable of performing and could have performed all the contracts in the allotted time if the plans and specifications furnished by the Commission on the contract had been correct.
When Emulsified began working on the Glenrock/Casper Project, it was discovered there were s
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