                IN THE SUPREME COURT, STATE OF WYOMING

                                2014 WY 145


                                               OCTOBER TERM, A.D. 2014

                                                   November 10, 2014




JEFFREY GERARD IRENE and CHRISTINE
DELAUTER as conservator of minor children MI
and EI,

Appellants
(Plaintiffs),

v.
                                                S-13-0232
SENECA INSURANCE COMPANY, INC., a
foreign corporation, LEDERMAN BONDING
COMPANY, a foreign corporation, and ERIC A.
OVERLIE,

Appellees
(Defendants).

LEDERMAN BONDING COMPANY, a foreign
corporation, and ERIC A. OVERLIE,

Appellants
(Defendants),

v.
                                                S-13-0233
JEFFREY GERARD IRENE and CHRISTINE
DELAUTER as conservator of minor children MI
and EI,

Appellees
(Plaintiffs).
SENECA INSURANCE COMPANY, INC., a
foreign corporation,

Appellant
(Defendant),

v.
                                                                     S-13-0234
JEFFREY GERARD IRENE and CHRISTINE
DELAUTER as conservator of minor children MI
and EI,

Appellees
(Plaintiffs).

                       Appeal from the District Court of Natrona County
                          The Honorable W. Thomas Sullins, Judge

Representing Appellants, Jeffrey Gerard Irene and Christine DeLauter, S-13-0232:
      Kenneth R. Friedman and A. Richard Dykstra, Friedman Rubin, Seattle,
      Washington; Robert T. Ingram and Scott J. Olheiser, Ingram Olheiser, P.C.,
      Casper, Wyoming. Argument by Mr. Dykstra.

Representing Appellee, Seneca Insurance Company, S-13-0232:
      William M. McKellar, McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming;
      Harry Steinberg, Lester Schwab Katz & Dwyer, LLP, New York, New York.
      Argument by Mr. Steinberg.

Representing Appellees, Lederman Bonding Company and Eric A. Overlie, S-13-0232:
      Scott P. Klosterman, Williams, Porter, Day & Neville, P.C., Casper, Wyoming.
      Argument by Mr. Klosterman.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.

*Chief Justice at time of oral argument.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.

[¶1] Jeffrey Irene incurred serious injuries after being struck and pinned under a
vehicle driven by Douglas Downs in the early morning hours of December 30, 2007.
Mr. Downs had been arrested for driving while under the influence of alcohol
approximately two hours prior to the incident and was detained at the Natrona County
jail. Eric Overlie, a licensed bail bondsman and an agent of Lederman Bonding
Company, posted bail to procure Mr. Downs’ release from custody. Mr. Irene and
Christine DeLauter, as conservator of Mr. Irene’s minor children MI and EI, filed suit
against Mr. Overlie and Lederman, as well as Seneca Insurance Company, the entity
which guaranteed the bond, claiming that Mr. Overlie had been negligent in releasing
Mr. Downs from his custody after bailing him out of jail. All defendants filed motions
for summary judgment asserting that they did not have a duty to protect Mr. Irene or
other members of the general public from injury caused by Mr. Downs. The district court
denied the motions.

[¶2] Approximately one month prior to the final pretrial conference, Mr. Overlie,
Lederman, and Seneca filed motions to dismiss the complaint under W.R.C.P. 12(b)(6),
claiming the suit had not been filed within the two-year statute of limitations set forth at
Wyo. Stat. Ann. § 1-3-107, which governs causes of action arising from the rendering of
licensed or professional services. The district court granted the motions to dismiss. In
Docket No. S-13-0232, Mr. Irene and Ms. DeLauter challenge the district court’s
dismissal of their complaint. Mr. Overlie and Lederman challenge the denial of their
motion for summary judgment in Docket No. S-13-0233, and Seneca challenges the
denial of its motion for summary judgment in Docket No. S-13-0234. We reverse the
district court’s decision to dismiss the complaint under W.R.C.P. 12(b)(6) in Docket No.
S-13-0232. As a result of that decision, and because the orders denying the motions for
summary judgment are not final, appealable orders, we dismiss the appeals in Docket
Nos. S-13-0233 and S-13-0234.

                                         ISSUES

[¶3] In Docket No. S-13-0232, Mr. Irene and Ms. DeLauter present the following
issues:

              1. Whether the trial court erred in applying the rule stated in
                 St. John v. Wagner when it ruled that Defendant Overlie’s
                 negligent acts were “of a professional nature.”

              2. Whether Wyoming’s professional malpractice statute, § 1-
                 3-107, applies when a “professional” negligently harms a
                 non-client third party with whom he has no professional
                 relationship or dealings.


                                             1
We do not address the issues raised in Appellees’ cross-appeals.1




1
    In Docket No. S-13-0233, Mr. Overlie and Lederman assert a single issue:

                  1. On December 30, 2007, Eric Overlie, a licensed bail bondsman,
                     posted a bail bond for Douglas Downs’ release from the Natrona
                     County detention center. Mr. Overlie then drove Mr. Downs to his
                     bail bond office where Mr. Downs proceeded on foot to a nearby bar
                     to catch a ride home with his friends. Did Mr. Overlie owe a legal
                     duty of care to members of the general public to protect them from
                     injury caused by Mr. Downs’ subsequent actions?

In Docket No. S-13-0234, Seneca raises five issues:

                  1. Did the trial court properly conclude that there was an issue of fact as
                     to whether Seneca Insurance Co., which did nothing more than serve
                     as the surety on a bail bond, owed a duty of care to plaintiff, who
                     was injured by the bailed defendant in an automobile accident after
                     he had been released on the bond that Seneca insured?

                  2. Can Seneca Insurance Co., which did nothing more than serve as the
                     surety on a bail bond, be held liable in negligence under Restatement
                     (Second) of Torts §§ 319 and 324A, which, respectively, impose
                     duties on those who take charge of a person with known dangerous
                     proclivities and undertake to render services upon which third parties
                     rely?

                  3. Can plaintiff seek to impose liability upon Seneca Insurance Co. on
                     the theory that Seneca is vicariously liable for any negligence by the
                     bondsman who posted the bail bond for the driver of the accident
                     vehicle, because it had, as required by Wyoming law, designated the
                     bondsman to be an insurance agent?

                  4. Was the act of the non-party owner of the accident vehicle, in giving
                     the keys to her vehicle to the bailed defendant and allowing him to
                     drive it, an intervening and superseding act that cut off any possible
                     liability that Seneca Insurance Co. may have had, even if it was
                     negligent in some manner?

                  5. Can plaintiff claim that the bondsman’s signing of a hold harmless
                     agreement to indemnify the Natrona County Sheriff for any liability
                     resulting from the release of the bailed defendant, impose a duty on
                     the bondsman, and Seneca Insurance Co., to indemnify plaintiff for
                     the injuries he sustained when he was struck by a vehicle driven by
                     the bailed defendant after he was released on bond?




                                                      2
                                                     FACTS

[¶4] On the night of December 29, 2007, Douglas Downs was arrested for driving
under the influence of alcohol after spending part of the evening drinking at the Sandbar
Lounge in Casper, Wyoming. He was taken to the Natrona County jail, where a breath
test revealed a .11% blood alcohol content. At approximately 1:00 a.m. on December 30,
Mr. Downs was released from custody after a surety bond was posted by Eric Overlie, an
agent of Lederman Bonding Company. As a condition of Mr. Downs’ release, the
Natrona County Sheriff’s Office required Mr. Overlie to sign a “Release and Hold
Harmless Agreement” under which Mr. Overlie agreed “to hold Natrona County
Sheriff[’s] Office, its agents, [and] employees harmless from any liability resulting from
this release.”

[¶5] Mr. Overlie drove Mr. Downs to the office of Speedy Release Bail Bonds, which
was located on the same street as the Sandbar Lounge. Mr. Downs then walked from the
office to the Sandbar, telling Mr. Overlie that he would catch a ride home with friends
who had remained at the bar. After arriving at the bar, Mr. Downs consumed another
alcoholic beverage before agreeing to drive a friend home in her vehicle. As Mr. Downs
was exiting the parking lot in his friend’s truck, he struck Mr. Irene, who became trapped
underneath the vehicle. Mr. Downs proceeded to drive over a mile while dragging
Mr. Irene beneath the vehicle, which resulted in serious injuries to Mr. Irene.

[¶6] Appellants filed their complaint on September 13, 2011. The Release and Hold
Harmless Agreement was attached to the complaint. Appellants claimed that Mr. Overlie
had been negligent in agreeing to accept custody of Mr. Downs from the Natrona County
Sheriff and in releasing him under circumstances in which he was likely to cause harm to
others. In August, 2013, after approximately two years of discovery, Appellees filed
motions for summary judgment. They also moved to dismiss the complaint under Rule
12(b)(6), asserting that the complaint was not filed within the two-year statute of
limitations for “professional malpractice” under Wyo. Stat. Ann. § 1-3-107.2 The
motions were heard at a final pretrial conference held on September 6, 2013. Following


2
    The statute provides, in relevant part, as follows:

                   § 1-3-107. Act, error or omission in rendering professional or health
                   care services.

                   (a) A cause of action arising from an act, error or omission in the
                   rendering of licensed or certified professional or health care services
                   shall be brought within the greater of the following times:

                            (i) Within two (2) years of the date of the alleged act, error or
                            omission . . . .




                                                          3
the hearing, the district court denied the motions for summary judgment and granted the
motions to dismiss. The court found that “[a]ll of the acts of negligence asserted in the
Complaint for Damages in this action are alleged to have been committed by Defendant
Eric A. Overlie while rendering licensed or certified professional insurance and bail bond
services.” As a result, the court concluded that the complaint had not been timely filed
under Wyo. Stat. Ann. § 1-3-107.

[¶7] Mr. Irene and Ms. DeLauter appealed the district court’s dismissal of their
complaint under W.R.C.P. 12(b)(6). Appellees filed cross-appeals challenging the
denials of their motions for summary judgment. The appeals were consolidated for
argument and decision.

                               STANDARD OF REVIEW

[¶8] When reviewing a W.R.C.P. 12(b)(6) motion to dismiss, we accept the facts stated
in the complaint as true and view them in the light most favorable to the plaintiff. We
will sustain such a dismissal when it is certain from the face of the complaint that the
plaintiff cannot assert any fact which would entitle him to relief. Stroth v. North Lincoln
County Hosp. Dist., 2014 WY 81, ¶ 6, 327 P.3d 121, 125 (Wyo. 2014). Dismissal under
W.R.C.P. 12(b)(6) is a drastic remedy, which should be granted sparingly, and is
appropriate only when it is certain the plaintiff cannot assert any facts that would entitle
him to relief. Simon v. Teton Bd. of Realtors, 4 P.3d 197, 200 (Wyo. 2000).

                                      DISCUSSION

Docket No. S-13-0232 – Dismissal Under W.R.C.P. 12(b)(6)

[¶9] In their complaint, Appellants asserted two causes of action against Appellees. In
their first cause of action, Appellants alleged that

              45. Defendants . . . took charge and control of Downs,
              whom they knew or should have known to be likely to cause
              bodily harm to others if not controlled and given the
              opportunity to operate a motor vehicle. Despite this
              knowledge, [Defendants] released charge and control of
              Downs, and thereby breached a duty of ordinary care of a
              reasonable person in the same or similar circumstances.

They also alleged that

              46. Defendants . . . breached their duty of ordinary care
              when Overlie accepted custody and responsibility for
              Mr. Downs and knowingly allowed him to return to the


                                             4
             Sandbar Lounge under such circumstances that they knew or
             should have known he was likely to drive a vehicle while
             under the influence of alcohol, and posed a serious danger of
             injury or death to others while operating a vehicle.

In their second cause of action, Appellants alleged that Appellees had breached a duty
under Restatement (Second) of Torts § 324A, which provides as follows:

             One who undertakes, gratuitously or for consideration, to
             render services to another which he should recognize as
             necessary for the protection of a third person or his things, is
             subject to liability to the third person for physical harm
             resulting from his failure to exercise reasonable care to
             protect his undertaking, if

                    (a) his failure to exercise reasonable care increases the
                    risk of such harm, or

                    (b) he has undertaken to perform a duty owed by the
                    other to the third person, or

                    (c) the harm is suffered because of reliance of the other
                    or the third person upon the undertaking.

According to the complaint,

             49. It is the stated policy of the Natrona County Sheriff’s
             Office that it will not release an intoxicated individual from
             its custody unless a sober adult person agrees to take custody,
             responsibility and control of the intoxicated person. Overlie
             was aware of this policy at the time that he signed Exhibit B,
             and agreed to such an undertaking to obtain Mr. Downs[’]
             release from jail. The Natrona County Sheriff’s Office relied
             upon Overlie’s undertaking of the custody, responsibility and
             control of Mr. Downs in order to release him to the custody of
             Mr. Overlie and allow him to leave the jail.

             50. Overlie was acting within the scope of his actual or
             apparent agency for Defendants Seneca, Bail USA and
             Lederman in signing Exhibit B, the Release and Hold
             Harmless Agreement, to secure the release of Mr. Downs
             from jail.



                                            5
                   ...

                   53. In undertaking the custody, responsibility and control
                   of Mr. Downs, Overlie agreed to perform a duty owed by the
                   Natrona County Sheriff’s Office to protect the public,
                   including Plaintiffs, from the harm caused by intoxicated
                   persons who are likely to drive a vehicle under the influence
                   of alcohol and cause serious physical injury or death.

                   54. Overlie failed to exercise reasonable care in the
                   custody, responsibility and control of Mr. Downs when he
                   allowed Mr. Downs to return to the bar where he had been
                   drinking before his arrest for DUI.

                   ...

                   57. By failing to exercise ordinary care to avoid injury to
                   third persons in performing its contractually assumed duties,
                   Seneca, Bail Bonds USA, Lederman and Overlie are liable for
                   injuries to the public.

Attached to the complaint as Exhibit B was the “Release and Hold Harmless Agreement”
of the Natrona County Sheriff’s Office. It provides: “The undersigned [hereby] accepts
custody of Douglas Dean Downs on release from the Natrona County Sheriff[’s] Office
Jail. The undersigned further accepts responsibility for Douglas Dean Downs and agrees
to hold Natrona County Sheriff[’s] Office, its agents, [and] employees harmless from any
liability resulting from this release.” Mr. Overlie signed the agreement as the “person
accepting custody.” In the space marked “relationship,” he wrote “bondsman.”

[¶10] In granting Appellees’ motions to dismiss, the district court found that “[a]ll of the
acts of negligence asserted in the Complaint for Damages in this action are alleged to
have been committed by Defendant Eric A. Overlie while rendering licensed or certified
professional insurance and bail bond services.” Based upon that analysis, the district
court concluded that the two-year statute of limitations set forth at Wyo. Stat. Ann. § 1-3-
107 applied.

[¶11] Appellants contend the district court erred in finding their claim was governed by
the two-year statute of limitations set forth at Wyo. Stat. Ann. § 1-3-107 (LexisNexis
2011).3 As noted above, that statute provides, in relevant part, as follows:


3
    Appellants claim that the four-year statute of limitations set forth at Wyo. Stat. Ann. § 1-3-105(a)(iv)(C)




                                                        6
                 § 1-3-107. Act, error or omission               in   rendering
                 professional or health care services.

                 (a) A cause of action arising from an act, error or omission in
                 the rendering of licensed or certified professional or health
                 care services shall be brought within the greater of the
                 following times:

                         (i) Within two (2) years of the date of the alleged act,
                         error or omission . . . .

Appellants claim the statute does not apply because “Overlie’s negligent release of
Downs was not a ‘professional act’ as defined in St. John v. Wagner, 2013 WY 69, ¶ 9,
302 P.3d 906, 908 (Wyo. 2013).” Additionally, Appellants contend that Mr. Irene and
Mr. Overlie “never had the ‘professional relationship’ necessary to form the basis for a
professional malpractice claim.”

[¶12] Appellees contend the district court properly concluded that the statute of
limitations set forth at Wyo. Stat. Ann. § 1-3-107 was applicable to Appellants’ claim
because all acts alleged by Appellants were committed by Mr. Overlie while acting in his
professional capacity. Appellees note that “anything that happened during the period
immediately following Mr. Downs’ release on the bond that Mr. Overlie had posted arose
out of that professional relationship.” They further contend that because Mr. Overlie
signed the Natrona County Sheriff’s hold harmless agreement as a bondsman, his
“negligence was ‘professional’ in nature and, therefore, within the ambit of § 1-3-
107(a).”

[¶13] Appellants rely on our decision in St. John v. Wagner to support their position. In
that case, we concluded that the appellee had not acted in his professional capacity as a
licensed dentist when he required the appellant, a patient who had received professional
dentistry services from the appellee, to obtain credit from a particular credit card
company to pay for the services rendered. Id., ¶ 9, 302 P.3d at 908. Accordingly, we
held that the statute of limitations set forth at Wyo. Stat. Ann. § 1-3-107 did not apply to
the appellant’s claim. Id. In reaching that determination, we distinguished our holding in
Prokop v. Hockhalter, 2006 WY 75, 137 P.3d 131 (Wyo. 2006), in which we concluded
that professional hunting guides qualify as “professionals” for purposes of Wyo. Stat.
Ann. § 1-3-107(a). We quote from that discussion at length:




applies to the causes of action asserted in their complaint.




                                                      7
The appellee argues that the appellant’s WCPA [Wyoming
Consumer Protection Act] claim is time-barred by the statute
because the claim arose out of the appellant’s “professional
relationship” with the appellee. The phrase “professional
relationship” is not, however, found in the above statute. For
that reason, the appellee relies upon this Court’s holding in
Prokop v. Hockhalter, 2006 WY 75, 137 P.3d 131 (Wyo.
2006). In that case, Prokop hired a professional hunting guide
to take him on a guided bighorn sheep hunt. Prokop
terminated the hunt three days after the outing began. Id. at ¶
4, at 132. Two years and five days later, Prokop filed a claim
alleging breach of contract, negligence, and intentional
infliction of emotional distress. Id. at ¶ 5, at 132-33. Relying
upon the two-year statute of limitations applicable to
professional services found in Wyo. Stat. Ann. § 1-3-107(a),
the federal district court granted summary judgment in favor
of the hunting guide. Id. at ¶ 5, at 133. Following an appeal,
the Tenth Circuit Court of Appeals certified the following
questions to this Court: whether the relevant statute of
limitations applies to actions against professional hunting
guides, and, if so, whether it applies to contract claims as well
as tort claims. Id. at ¶ 1, at 132.

        After concluding that professional hunting guides
qualify as professionals for purposes of Wyo. Stat. Ann. § 1-
3-107(a), this Court determined that the statute of limitations
at issue applied to contract claims as well as tort claims.
Prokop, 2006 WY 75, ¶ 16, 137 P.3d at 136. We relied upon
a Nebraska Supreme Court case holding that “[i]f all [] claims
are based on a single professional relationship [] they may
not be separated into various parts to allow different periods
of limitation to be applied.” Reinke Mfg. Co., Inc. v. Hayes,
256 Neb. 442, 590 N.W.2d 380, 387 (1999) (emphasis
added). The appellee concludes that, because the appellant’s
WCPA claim “undoubtedly arises out of her professional
relationship” with the appellee, the two-year statute of
limitations applies and the claim was properly dismissed.

        Neither party disputes the fact that dentistry qualifies
as a licensed profession. The question before us, therefore, is
limited to whether the appellant’s WCPA claim arose “from
an act, error or omission in the rendering of licensed or
certified professional or health care services.” Wyo. Stat.


                               8
Ann. § 1-3-107(a). By contending that Wyo. Stat. Ann. § 1-3-
107 is applicable, the appellee misinterprets Prokop and
construes “professional relationship” to include a broader
range of activity than intended by the legislature. The
circumstances surrounding the appellant’s and the appellee’s
dispute do, indeed, derive from the fact that the appellant
sought the appellee’s professional services. All interactions
between dentist and patient do not, however, constitute the
rendering of professional services under the statute. In
Reinke, upon which Prokop relies, the court determined that
application of the two-year statute of limitations would
require a determination of whether the professional was
“acting in a ‘professional’ capacity.” Reinke, 590 N.W.2d at
388.

       In determining whether a particular act is of a
       professional nature or a professional service, the court
       must look to the nature of the act itself and the
       circumstances under which it was performed. Swassing
       v. Baum, 195 Neb. 651, [656,] 240 N.W.2d 24[, 27]
       (1976). A professional act or service is one arising out
       of a vocation, calling, occupation, or employment
       involving specialized knowledge which is attained
       from often long and intensive preparation and
       instruction in skills and methods and the scientific,
       historical, and scholarly principles underlying such
       skills and methods. Jorgensen v. State Nat. Bank &
       Trust, [255 Neb. 241, 245, 583 N.W.2d 331, 334
       (1998)].

Reinke, 590 N.W.2d at 388. This is similar to the language of
our professional malpractice statute of limitations, which by
its terms applies to “a cause of action arising from an act,
error or omission in the rendering of licensed or certified
professional or health care services.” Wyo. Stat. Ann. § 1-3-
107(a) (emphasis added). The appellee is a licensed provider
of dental care. He acts in his professional capacity when he
performs dentistry. While there may be instances where a
professional’s billing practices are so closely intertwined with
his or her professional services so as to be considered part of
those professional services, that is not true in this case.
Requiring a patient to obtain credit from a particular credit
card company falls beyond the provision of “licensed or


                               9
                certified professional health care services.”

St. John, ¶¶ 7-9, 302 P.3d at 907-908 (emphasis added).

[¶14] As indicated by our discussion in St. John, in determining whether a particular act
or service is professional in nature, we must compare the nature of the particular service
rendered to the typical duties performed by the licensed or certified professional. In
some cases, as in St. John, the issue of whether a licensed or certified professional is
providing professional services at the time of the conduct giving rise to a claim against
the professional may be easily resolved by reference to a common understanding of the
duties of the profession. Whether a particular service constitutes a professional service
under Wyo. Stat. Ann. § 1-3-107, however, is not always as clear as the difference
between dentistry and consumer financing. Answering that question in the present case
requires a clear understanding of the contours of the typical services rendered by a
professional bail bondsman.

[¶15] According to one legal encyclopedia, a bail bondsman is licensed to sell surety
agreements to criminal defendants who are required to post bail in order to be released
from the custody of the State. 8A Am. Jur. 2d Bail and Recognizance § 105. Generally,
the obligation of sureties on a bail bond is that they will produce the accused in open
court when his or her presence is required in accordance with the terms of the bond. Id.
Under this arrangement, the surety assumes the risk of a defendant’s failure to appear in
court and, in order to protect its interest, must take steps to prevent a defendant from
absconding from the jurisdiction. Id. A surety, however, “may not shackle, confine, or
impede the principal in his or her daily movements, even though the state may so restrict
defendants in its custody; rather, the bail arrangement implies only that the surety obtains
sufficient control over the principal to assure his or her appearances . . . .” 8A Am. Jur.
2d Bail and Recognizance § 107. According to this source, then, a bail bondsman acts in
his professional capacity when he sells insurance to criminal defendants and when he
secures the attendance of criminal defendants in court. The wrongful conduct asserted in
the complaint did not arise from either of these activities. 4

[¶16] In Wyoming, the licensing requirements for a bail bondsman appear to be directed
solely to the ability of a bail bondsman to sell insurance. In a formal opinion addressing
the Insurance Department’s authority to regulate the activities of bail bondsmen, the
Wyoming Attorney General noted that “Bail bondsmen are typically viewed as offering



4
  For purposes of addressing the motion to dismiss, Appellants do not dispute that the sale of bail bonds is
a professional service, or that a claim of negligence in the issuance of a bail bond would be governed by
the statute of limitations set forth in Wyo. Stat. Ann. § 1-3-107. Whether Wyo. Stat. Ann. § 1-3-107
applies to the sale of insurance is not an issue that is before the court at this time.




                                                    10
or engaging in the business of insurance” and that “Regulation often takes the form of
licensing by a state agency, like an insurance department, in addition to requirements by
the courts that must be met.” 1996 Wyo. Op. Atty. Gen. 14, 1 (citing Klevenhagen v.
International Fidelity Insurance Company, 861 S.W.2d. 13, 16 (Tex. App. Houston 1st
Dist. 1993); 13 A.L.R.3d 618). Indeed, in Wyoming, the activities of bail bondsmen are
regulated through statutes providing for licensing of insurance producers. Pursuant to
Wyo. Stat. Ann. § 26-9-203, “A person shall not sell, solicit or negotiate insurance in this
state for any class or classes of insurance unless the person is licensed for that line of
authority in accordance with this chapter.” In order to obtain an insurance producer
license, an individual must be at least eighteen years old, must not have committed any
act that is grounds for denial under Wyo. Stat. Ann. § 26-9-211, must have paid the
necessary fees, must have successfully passed the appropriate examination, and must
have passed a criminal history record background check. Wyo. Stat. Ann. § 26-9-206.
The statutes give no indication that the licensing requirements encompass any of the
activities of Mr. Overlie that are at issue in this litigation other than providing the surety
bond.

[¶17] Appellees point out that Mr. Overlie noted, on the hold harmless agreement, which
was attached to the complaint, that his relationship to Mr. Downs was that of
“bondsman.” This fact, however, does not establish that taking custody of persons who
have been arrested following their release is part of the professional responsibilities of a
bail bondsman. There is nothing in the complaint alleging that a bondsman receives
training in such activity, or that knowledge of such practices is required for licensure.
Indeed, as noted by Appellants in their complaint, any sober adult was permitted to take
custody of Mr. Downs upon execution of the Natrona County Sheriff’s hold harmless
agreement. The hold harmless agreement gives no indication that the form must be
signed by the same person who posts the bail bond.

[¶18] Appellees direct us to assertions in the complaint relating to vicarious liability to
support their position. The complaint states that “On information and belief Seneca has
the right to control the conduct of Overlie with respect to the issuance of bonds on its
behalf.” The complaint also states that “Overlie was acting within the scope of his actual
or apparent agency for Defendants Seneca, Bail USA and Lederman in signing Exhibit B,
the Release and Hold Harmless Agreement, to secure the release of Mr. Downs from
jail.” These facts, however, when viewed in the light most favorable to Appellants, do
not constitute an admission that executing the hold harmless agreement or transporting
Mr. Downs after bailing him out of jail were professional acts. Appellees have not
established that such activities would fit, as a matter of law, within the professional duties
of a bail bondsman as required by our decision in St. John v. Wagner. Based upon the
foregoing, we find that it was not clear from the face of the complaint that Mr. Overlie
was rendering a professional service within the strictures of Wyo. Stat. Ann. § 1-3-107.

[¶19] Before leaving this issue we would offer two additional observations. First, we


                                             11
must keep in mind that the running of a statute of limitations is an affirmative defense
and the burden is on the defendant to establish that the limitations period applies.
Whitney Holding Corp. v. Terry, 2012 WY 21, ¶ 11, 270 P.3d 662, 666 (Wyo. 2012).
Stated differently, Appellants were not required to assert in their complaint that Wyo.
Stat. Ann. § 1-3-107 was not applicable.

[¶20] Second, the unusual procedural posture of this case at the time of filing of the
motions to dismiss warrants brief comment. Typically, a motion to dismiss asserting a
statute of limitations bar to the causes of action asserted in the complaint is filed early in
the litigation process. That did not happen in this case. Here, the motions to dismiss
were filed nearly two years after the litigation had been commenced. During those two
years, the parties engaged in protracted discovery. Shortly before the final pretrial
conference was to be held, Appellees filed their motions to dismiss alleging that the
action was barred by the statute of limitations set forth in Wyo. Stat. Ann. § 1-3-107. In
their appellate briefs, the parties reference evidence adduced during discovery that was
not reflected in the allegations of the complaint. In resolving a challenge to a Rule
12(b)(6) dismissal, however, our focus is on the allegations of the complaint, and our
standard of review requires that we view the facts as alleged in the complaint in the light
most favorable to the plaintiffs, and we can affirm the dismissal only “when it is certain
from the face of the complaint that the plaintiff cannot assert any fact which would entitle
him to relief.” Stroth, ¶ 6, 327 P.3d at 125. Simply put, the facts adduced during
discovery are not relevant to our analysis. 5

[¶21] We would note, however, that the information obtained during discovery
illustrates the difficulty in determining whether the actions at issue fit within the ambit of
Wyo. Stat. Ann. § 1-3-107. In her deposition testimony, Jeanine Beagle, a bail
bondswoman in Casper, Wyoming, stated that she rarely signed the release agreement:

               I think I’ve done it maybe five times in fourteen years. I
               don’t like doing it. I’ve done it I think about like three times
               – three or four times when I knew them and the parent was


5
 Appellees did not produce evidence outside the pleadings in their motions to dismiss, and neither party
sought conversion of the motion to dismiss to a motion for summary judgment under Rule 12(b). That
rule provides as follows:

               If, on a motion asserting the defense numbered (6) to dismiss for failure
               of the pleading to state a claim upon which relief can be granted, matters
               outside the pleading are presented to and not excluded by the court, the
               motion shall be treated as one for summary judgment and disposed of as
               provided in Rule 56, and all parties shall be given reasonable opportunity
               to present all material made pertinent to such a motion by Rule 56.




                                                  12
              coming up the hill. I knew they were almost in the parking
              lot. They were coming up the hill. They’re on their way.
              They’re going to take responsibility. And the sheriff’s
              already brought the child or person out. And so I’ll sign it so
              that the sheriff can get back and do what he needs to be
              doing, knowing that the guarantor is coming in.

              ...

              I don’t like doing it unless I feel that we already know
              somebody is coming to take them home.

When Ms. Beagle was asked what she would do in a situation involving an arrestee who
is extremely intoxicated at the time of the arrestee’s release from jail, she stated:

              There’s always a guarantor. And usually it’s a parent. Not
              100 percent, but usually it’s a parent. They sign [the release
              agreement], and they take custody. Again, when I post the
              bail bonds, I stay there. I wait. I have everybody fill out
              paperwork even if they’re drunk. We talk to them, make sure
              they can understand as clear as can be, and then we make sure
              that there’s – that [the] guarantor has taken custody.

Similarly, Beverly Vitamvas, who is also a bail bondswoman in Casper, stated that she
never signed the release agreement because she wasn’t “going to be responsible for what
some drunk does when he gets out of jail.”

[¶22] In the majority of cases involving the applicability of a statute of limitations, the
facts are undisputed. When relevant facts are undisputed, we have stated that the issue of
whether a statute of limitations applies is resolvable as a matter of law. See St. John, ¶ 6,
302 P.3d at 907. We have also held, however, that when facts are in dispute, the
applicability of a statute of limitations involves a mixed question of law and fact. Moats
v. Prof’l Assistance, LLC, 2014 WY 6, ¶ 21, 319 P.3d 892, 897 (Wyo. 2014). For
example, in Safecard Servs., Inc. v. Halmos, 912 P.2d 1132 (Wyo. 1996), we found that
the applicability of the relevant statute of limitations depended on whether the defendant,
a corporate fiduciary, had engaged in wrongful self-dealing under the rule of Bovay v. H.
M. Byllesby & Co., 27 Del. Ch. 381, 38 A.2d 808, 820 (1944). We held that

              Application of the Bovay rule to the statute of limitations in a
              case such as this one, where the corporation files suit against
              a corporate fiduciary, requires an answer to the question of
              whether the corporation knew or had reason to know that a
              legal wrong had been committed against it, an inquiry which


                                             13
               is a question of fact for a jury.

Safecard, 912 P.2d at 1135. In St. John, we were able to determine as a matter of law
that the defendant was not acting in his professional capacity when rendering the services
in question. We are reluctant to make a similar determination in this case at this juncture.
The applicability of Wyo. Stat. Ann. § 1-3-107 in the present case may require resolution
of a factual dispute relating to the professional duties of a licensed bail bondsman. In any
event, however, it is not at all clear from the face of the complaint that Mr. Overlie was
performing professional services that would render Wyo. Stat. Ann. § 1-3-107 applicable.
The facts as stated in the complaint, and viewed in the light most favorable to Appellants,
do not establish that Mr. Overlie was rendering licensed or professional services when he
signed the Natrona County Sheriff’s Office hold harmless agreement and released
Mr. Downs from his custody. In reaching that conclusion, we would emphasize that we
are not determining whether the alleged negligence in this case arose out of Mr. Overlie’s
services as a professional bail bondsman. That question, however, cannot be answered in
the affirmative based solely on the facts alleged in the complaint. Accordingly, we
reverse the district court’s grant of Appellees’ motions to dismiss in Docket No. S-13-
0232.

Docket Nos. S-13-0233; 0234 – Denial of Summary Judgment

[¶23] In Docket Nos. S-13-0233 and S-13-0234, Mr. Overlie, Lederman, and Seneca
challenge the district court’s denial of their motions for summary judgment. They claim,
generally, that the district court erred in concluding that they owed a duty of care to
Mr. Irene. The denial of a defendant’s summary judgment motion is generally not a final
appealable order. Campbell County Mem. Hosp. v. Pfeifle, 2014 WY 3, ¶ 12, 317 P.3d
573, 576 (Wyo. 2014). Although there are exceptions to this general rule, the district
court’s denial of Appellees’ summary judgment motions does not fall within any of those
exceptions.6 Accordingly, we dismiss the appeals in Docket Nos. S-13-0233 and S-13-
0234.

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




6
  The exceptions to the general rule apply when (1) summary judgment is denied based on a claim of
qualified or governmental immunity, and (2) when the court grants one party’s motion for summary
judgment and denies the opposing party’s motion for summary judgment and the court’s decision
completely resolves the case. See Campbell, ¶ 12, 317 P.3d at 576; Lindsey v. Harriet, 2011 WY 80, ¶
18, 255 P.3d 873, 880 (Wyo. 2011).




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