[00:00:00] Speaker 01:
All right, we're back to more water damage.

[00:00:03] Speaker 01:
This case is 23-8068 Banker's Standard versus JTAC.

[00:00:10] Speaker 02:
Mr. Lark, go ahead.

[00:00:11] Speaker 02:
Good morning, Your Honors.

[00:00:13] Speaker 02:
May it please the Court, my name is Richard Brewer and I represent the opponent Banker's Standard in this matter.

[00:00:21] Speaker 02:
This matter comes before the court as Banker's Standard seeks to reverse the decision of the U.S.

[00:00:27] Speaker 02:
District Court in Wyoming, which granted summary judgment to JTAC based on when the statute of limitations began to run per Wyoming's professional liability statute.

[00:00:41] Speaker 02:
That's 13107.

[00:00:45] Speaker 02:
The underlying facts in the incident is that water damage

[00:00:50] Speaker 02:
was occurred at the residence of banker standards insurers on May 7, 2020, when a water filter on the domestic water line in the house of David and Lauren Grossman, banker standards insurers, failed.

[00:01:12] Speaker 02:
J-Tech was the mechanical engineer responsible for the design of the mechanical systems

[00:01:19] Speaker 02:
of that house, and the bankers came and brought a lawsuit based in segregation of the cover monies.

[00:01:26] Speaker 02:
They paid two and a half of the groceries for that damage.

[00:01:31] Speaker 02:
In 2017, defendant J. Tech was hired by an architect, a studio lab, to prepare mechanical plans and specifications for submission

[00:01:45] Speaker 02:
to the local jurisdiction for purposes of obtaining a building permit and for construction of the Grossman House, as well as a number of other homes in the same suburb.

[00:02:00] Speaker 02:
The homes were then built by a defendant, Pinnacle Construction, which is not part of this appeal, based on those plans.

[00:02:09] Speaker 02:
And those plans included what is called a water entry detail.

[00:02:14] Speaker 02:
the water entry detail in the JTEC plan improperly located the failed water filter upstream of the required pressure reducing valve, or PRV, when it was supposed to be downstream or after the PRV.

[00:02:35] Speaker 02:
As a result, the design exposed that water filter to extremely high water pressure, which eventually caused the filter housing

[00:02:44] Speaker 02:
to fail and leak water into the house.

[00:02:51] Speaker 00:
Could the architect have changed the plan after submission of the water entry detail?

[00:03:02] Speaker 00:
After that point, could he have said, I thought further about it?

[00:03:07] Speaker 00:
I'd like to make some further revisions.

[00:03:11] Speaker 02:
I don't know what the contract between Studio Plaid and JTEC sets.

[00:03:19] Speaker 02:
I would imagine that if the architect had concerns about it, they certainly could have raised those to JTEC and JTEC could have chose to... But you think it would have been JTEC's responsibility and not the architect's responsibility?

[00:03:36] Speaker 02:
Absolutely.

[00:03:36] Speaker 02:
JTEC is the mechanical engineer on the...

[00:03:40] Speaker 02:
for the project, they're the ones that prepared the plans.

[00:03:45] Speaker 00:
Okay, so when could JTAC have changed the plans?

[00:03:50] Speaker 00:
When?

[00:03:50] Speaker 00:
Could they have?

[00:03:51] Speaker 00:
Yeah, I mean, was there any limit to when they could have said things were changed?

[00:03:55] Speaker 02:
Well, I assume they could have changed that plan at any point in time during the course of their work, during the rendering and other services.

[00:04:05] Speaker 02:
They made revisions to

[00:04:08] Speaker 02:
their plans in other areas.

[00:04:12] Speaker 02:
But they did not ever change.

[00:04:14] Speaker 02:
I understand that.

[00:04:17] Speaker 04:
Is there anything in the record about which plans, I presume it would be the final plans, were used by the plumbing contractor in actually installing the mechanical?

[00:04:30] Speaker 04:
Was it the final plans?

[00:04:34] Speaker 02:
I don't know that there's specific testimony that

[00:04:38] Speaker 02:
I use this one that says final on them, but presumably they would have used the final plan.

[00:04:48] Speaker 04:
Does that matter since, I mean, and wouldn't it matter since the statute requires that the cause of action arose from an act, error, or omission in the rendering of services, and doesn't it arise when they, with whatever plans they actually use, and presumably that was the final plan?

[00:05:08] Speaker 02:
The statute doesn't address when the plan is used.

[00:05:15] Speaker 02:
The statute only talks to the act, error, or mission.

[00:05:21] Speaker 04:
How does the cause of action, though, doesn't it only arise because somebody used these plans?

[00:05:28] Speaker 04:
It's not just the plans themselves that result in the

[00:05:33] Speaker 04:
cause of action, it's the use of these defective plans or negligently designed plans that eventually causes the problem.

[00:05:43] Speaker 04:
And so I guess my thought is, perhaps for different reasons, why in the district court, why isn't it the final plans that presumably were used by this plumber to design, you know, to install the valve negligently, basically?

[00:06:02] Speaker 04:
Or he installed it the way the plans were.

[00:06:07] Speaker 02:
I don't doubt that the final plans were what ended up being handed off to whoever.

[00:06:17] Speaker 04:
So that's how the mistake then gets made in this house.

[00:06:23] Speaker 04:
How they end up with defective plumbing.

[00:06:26] Speaker 04:
From that final plan that's used by the plumber that results in the

[00:06:33] Speaker 04:
water damage.

[00:06:34] Speaker 02:
I don't disagree.

[00:06:36] Speaker 04:
Okay.

[00:06:37] Speaker 04:
So why doesn't the cause of action arise from that final plan which contains this defective design?

[00:06:45] Speaker 02:
Because the error is in that water entry detail.

[00:06:50] Speaker 02:
That was a plan that was done earlier.

[00:06:54] Speaker 04:
I know, I'm just asking

[00:06:56] Speaker 04:
What happened with that prior plan?

[00:06:58] Speaker 04:
Did the prior plans actually get used?

[00:07:01] Speaker 04:
And don't they have to be used in order for a cause of action to arise?

[00:07:05] Speaker 02:
I'm sorry, I didn't hear you right.

[00:07:07] Speaker 02:
Yeah.

[00:07:08] Speaker 02:
The plan is used.

[00:07:10] Speaker 02:
The engineer stands the plan.

[00:07:12] Speaker 02:
He gives it to people.

[00:07:14] Speaker 02:
That plan is given to the authority of the jurisdiction for purposes of issuing a building permit.

[00:07:22] Speaker 02:
Right.

[00:07:24] Speaker 04:
But the building permit and the issuance of the building

[00:07:26] Speaker 04:
also isn't the cause of action or where it arose.

[00:07:33] Speaker 04:
It's from the actual installation using that plan, right?

[00:07:38] Speaker 02:
Well, it starts with the plan.

[00:07:40] Speaker 02:
It starts with the plan.

[00:07:41] Speaker 02:
Right, but the plan has to be used.

[00:07:44] Speaker 04:
That's my point.

[00:07:45] Speaker 02:
Yeah, I don't disagree with that, but the plan and the error that is part of that plan was done

[00:07:56] Speaker 02:
action, you see in the brief where we argue it happened in August 2017, but the only plan that we have and the earliest plan that we have with that detail is the March 1, 2018.

[00:08:08] Speaker 02:
That's when the error occurred.

[00:08:10] Speaker 02:
What happens after that, yeah, and that never changed.

[00:08:13] Speaker 02:
So that's when the error occurs.

[00:08:16] Speaker 01:
JTEC resists that and says, well, that means that there's going to be a different

[00:08:24] Speaker 01:
statute of negligence, statute of limitation for every input that goes into the final plan.

[00:08:29] Speaker 01:
So, you know, the one architectural piece and one subcontractor, you know, there's like five or six different, you know, professional submissions here all having triggering different statutes of limitation.

[00:08:44] Speaker 01:
And, you know, Judge Friedenthal resolves that by using the final plan as the

[00:08:50] Speaker 01:
appropriate date.

[00:08:51] Speaker 01:
Can you respond to that?

[00:08:57] Speaker 02:
Certainly, there would be a different trigger date for what I'm arguing than final plans.

[00:09:08] Speaker 02:
I'm not so sure that final plans would apply to every professional that might have been involved in the project.

[00:09:19] Speaker 02:
The language of the statute does not say when the rendering of professional services concludes.

[00:09:28] Speaker 01:
It says the act, error, or omission in the rendering of professional services.

[00:09:34] Speaker 01:
And that's always, in your view, that's always when they hand over the plan to the contractor.

[00:09:41] Speaker 02:
Well, that happens when they hand over engineer-stamped plans to the building department.

[00:09:47] Speaker 02:
it happens there too.

[00:09:48] Speaker 02:
Now, does that mean that that gives a different trigger date than maybe, just for example, the architect who, you know, it's considered for a trigger date for that to be when the plans are delivered?

[00:10:05] Speaker 02:
Yes, it does.

[00:10:06] Speaker 02:
But that's the way the statute is written.

[00:10:10] Speaker 02:
I mean, the

[00:10:15] Speaker 02:
the time period for filing change very wildly depending on when somebody actually incurs damage.

[00:10:23] Speaker 02:
There could be a water filter that fails, you know, two years later.

[00:10:28] Speaker 02:
You're going to have, you're still going to be dealing with different time periods then.

[00:10:33] Speaker 02:
So I think that's just

[00:10:36] Speaker 02:
a product of the statute and how that statute is written.

[00:10:40] Speaker 02:
You know, there was an interesting comment made in the Witherspoon case where they said, hey, look, we understand that our voting here may be fair to some contractors and unfair to others, and such is the nature of the statute of repose.

[00:10:58] Speaker 02:
It's a statute of repose in that case.

[00:11:00] Speaker 02:
And that's just the nature of how this statute is written.

[00:11:06] Speaker 02:
The professionals, they get a benefit from this statute by having a much shorter time period than they would for a regular negligence or breach of contract.

[00:11:21] Speaker 01:
Does the final submission of plans do any work here, set up any relevance to the legal interpretation you're advancing?

[00:11:32] Speaker 02:
Not for this case.

[00:11:34] Speaker 02:
Not for this case.

[00:11:35] Speaker 02:
Now, might it for somebody else?

[00:11:38] Speaker 02:
I mean, Reinke and Winterspoon and Prokop talk about a contractual, if there's a contractual relationship between the parties, then the contract, you can't parse out the time periods between contract and tort.

[00:12:01] Speaker 02:
to answer your question, does it mean, does it have any significance?

[00:12:07] Speaker 02:
Yes, it might, but it doesn't for this case.

[00:12:11] Speaker 02:
And the Reinke and Witherspoon case that the district court relied on so heavily, those courts say these need to be determined on the facts of each case.

[00:12:26] Speaker 00:
So what's the unique fact on this case that makes this different?

[00:12:33] Speaker 00:
Sorry.

[00:12:35] Speaker 02:
Different from those cases.

[00:12:37] Speaker 02:
Yeah.

[00:12:39] Speaker 02:
In those cases, well, and specifically with Adelaide Z and the other one on the case, I'm sorry, Adelaide Z and Leggagate, those were omissions.

[00:12:54] Speaker 02:
That was something where they were supposed to do something and they didn't do it.

[00:12:59] Speaker 02:
And so naturally,

[00:13:01] Speaker 02:
That admission can occur until the contractual relationship or the contractual services have concluded, because they have up until that time to render that.

[00:13:14] Speaker 02:
So that's the difference in those cases.

[00:13:18] Speaker 02:
I didn't see any cases in Wyoming, Nebraska, or anywhere else that had this specific fact situation.

[00:13:29] Speaker 04:
Would this be something we should certify to the Wyoming Supreme Court and have you requested that?

[00:13:37] Speaker 02:
I trust this court's ability to address it.

[00:13:42] Speaker 02:
Certainly, Judge Friedenthal could have done that.

[00:13:46] Speaker 04:
He recognized that Wyoming law is certainly not settled on this point.

[00:13:50] Speaker 02:
She did.

[00:13:50] Speaker 04:
Or she, I'm sorry.

[00:13:52] Speaker 04:
It was Judge Friedenthal.

[00:13:54] Speaker 02:
Sorry.

[00:13:55] Speaker 02:
Yes, you're right.

[00:13:56] Speaker 02:
She did say that, and she chose not to certify.

[00:14:01] Speaker 04:
She kind of went on then and used other states' case law

[00:14:07] Speaker 04:
to try to decide what Wyoming would do in this particular instance?

[00:14:12] Speaker 04:
Would it be better just to ask Wyoming?

[00:14:17] Speaker 04:
I don't know if it would be better, but... I guess I didn't see the answer.

[00:14:21] Speaker 00:
You'll tell us after you see our... Yeah, you'll see.

[00:14:23] Speaker 01:
Your answer is very interesting.

[00:14:24] Speaker 04:
Well, I mean... I'll come back to you and ask if I can... To me, I mean, what you were just saying was that basically those cases, at least some of them, you were talking about the Wyoming cases, but the out-of-state cases were all

[00:14:35] Speaker 04:
I think there was contractual privity in those cases, or they weren't like this case.

[00:14:41] Speaker 04:
And I'm just wondering about using those cases to predict Wyoming law when we could just ask Wyoming.

[00:14:49] Speaker 02:
Well, I certainly have concerns about how the court interpreted those two Nebraska cases.

[00:14:58] Speaker 02:
And Wyoming has looked to Nebraska in situations before and other issues that I've had to press.

[00:15:05] Speaker 02:
But I did want to reserve this.

[00:15:07] Speaker 01:
I'll give you a minute.

[00:15:11] Speaker 02:
But you can certify this, but I don't think it is such a complex issue that this court certainly isn't capable of handling that.

[00:15:31] Speaker 02:
Thank you.

[00:16:01] Speaker 03:
Good morning.

[00:16:02] Speaker 03:
May I please the court?

[00:16:04] Speaker 03:
I'm Serena Hinden and I'm here on behalf of JTEC, the Appellee.

[00:16:09] Speaker 03:
The district court's ruling granting summary judgment to JTEC should be upheld.

[00:16:19] Speaker 03:
Going back to some of the questions that this court had in regards to banker standard, first off, it is the final plans and it is mainly because that was the last chance that JTAC had to make a change.

[00:16:38] Speaker 03:
It was the last chance that JTAC had to review the plans, discover any errors, omissions or

[00:16:46] Speaker 03:
Any errors or omissions or any acts that it had?

[00:16:49] Speaker 00:
Yes.

[00:16:49] Speaker 00:
That's why I'm just a little unclear.

[00:16:53] Speaker 00:
If the architect had submitted these plans and then six months later or a month later, somebody in their office said, gosh, I've been filing these and look at them.

[00:17:05] Speaker 00:
I think there's a mistake.

[00:17:07] Speaker 00:
They certainly could have called up and said, wait a minute, I want to change things, right?

[00:17:13] Speaker 03:
And that's correct.

[00:17:14] Speaker 03:
The architect is different than the mechanical engineer.

[00:17:18] Speaker 00:
Well, I meant the mechanical engineer.

[00:17:20] Speaker 00:
Couldn't the mechanical engineer have called the architect and said, hey, I discovered I made a mistake.

[00:17:25] Speaker 00:
And I think we ought to look at this again.

[00:17:30] Speaker 03:
Yes.

[00:17:32] Speaker 03:
They did have, if the engineer had a chance to do that, of course.

[00:17:38] Speaker 03:
During its contract, these plans went through at least six revisions.

[00:17:43] Speaker 03:
And the... But not JTAX, right?

[00:17:47] Speaker 03:
JTAX.

[00:17:48] Speaker 03:
JTAX plans went through six revisions.

[00:17:51] Speaker 01:
But the last... The error and omission was in the first submission and stayed throughout the six variations, correct?

[00:18:02] Speaker 03:
Although the... I think the deposition testimony actually talks about the third revision.

[00:18:07] Speaker 01:
Okay.

[00:18:09] Speaker 04:
The March 1st, 2018 revision.

[00:18:11] Speaker 04:
Correct.

[00:18:12] Speaker 04:
Which is the one that plaintiffs suggest it started.

[00:18:16] Speaker 01:
So why wouldn't that be the critical error for admission here?

[00:18:21] Speaker 01:
Because the final submission is just kind of arbitrary to some extent.

[00:18:27] Speaker 03:
Twofold.

[00:18:28] Speaker 03:
Because JTAC's contract in the studio plan anticipates a continuous iterative process of change for these plans as it's going through the contract.

[00:18:37] Speaker 04:
But this isn't a contract case.

[00:18:39] Speaker 04:
These parties aren't in privity.

[00:18:41] Speaker 04:
This is a tort case.

[00:18:43] Speaker 04:
Why would that make any difference at all?

[00:18:46] Speaker 03:
Because I like the way the Wyoming Supreme Court in Metzger v. Kalki comes back to a continuous service, especially if there's an error in one of the treatments.

[00:18:58] Speaker 03:
Metzger was a mechanical, sorry, a medical case that looks at the various treatments.

[00:19:06] Speaker 03:
Typically, there's no contract between a patient and a doctor.

[00:19:11] Speaker 04:
And as far as looking at... Treatments are more, that's an ongoing situation.

[00:19:18] Speaker 04:
These plans were submitted and then never changed after March 1st, 2018.

[00:19:21] Speaker 04:
I don't think that's comparable to medical treatment, ongoing medical treatment.

[00:19:27] Speaker 03:
There is a concept of a single act exception in regards to continuous treatment or continuous care.

[00:19:36] Speaker 03:
It's something that the Wyoming Supreme Court reviewed and threw out.

[00:19:40] Speaker 03:
They said that Wyoming should not adopt it.

[00:19:43] Speaker 03:
But what Matzker said in the continuous treatment as far as an error is that it is not the initial error or the initial mistake that causes the injury.

[00:19:55] Speaker 03:
It is the continued adherence to that error that causes the injury, which is what is happening here.

[00:20:01] Speaker 03:
It is that negligent adherence to that error all the way through the plans that in the end causes the injury.

[00:20:10] Speaker 01:
So the way you sort it out is that JTAC committed negligence the day before the final submission

[00:20:24] Speaker 01:
because it negligently failed to correct the plans.

[00:20:32] Speaker 03:
Although I would say causation has not been determined in this case, I would agree that essentially that it was up to that last... Because it could have corrected that plans until the last second.

[00:20:46] Speaker 03:
The last second.

[00:20:47] Speaker 03:
And that is similar to a lot of these construction cases.

[00:20:50] Speaker 00:
In regards to why... This isn't a contract case.

[00:20:54] Speaker 00:
it could have corrected them after that time.

[00:20:57] Speaker 00:
If somebody in their office said, oh, gosh, we just discovered we made a big mistake.

[00:21:02] Speaker 00:
Actually, until the water diversion point was built, they could have stepped up and said, hey, we did something wrong.

[00:21:12] Speaker 00:
It's got to be fixed, right?

[00:21:14] Speaker 00:
But that would impose a continuing duty on them after their pay was no longer

[00:21:22] Speaker 00:
they were no longer getting additional pay, they weren't a supervising agent getting a supervisory payment to kind of stay on top of things.

[00:21:32] Speaker 00:
And so that kind of would have been gratuitous at that point.

[00:21:35] Speaker 00:
That's why you say that's the point we use.

[00:21:39] Speaker 03:
I would agree with that as well.

[00:21:41] Speaker 03:
Because what you're describing is the continuous care concept.

[00:21:45] Speaker 03:
And continuous care or continuous service

[00:21:48] Speaker 03:
in the state of Wyoming has been looked at as far as beyond the medical community and extended to lawyers and to insurance agents.

[00:21:58] Speaker 03:
Although the facts of those cases, the Wyoming Supreme Court has not adopted it.

[00:22:04] Speaker 03:
And maybe because the continuing service was not the same or similar or related to the work that was done prior.

[00:22:15] Speaker 03:
And I believe the continuous care doctrine is used in place of, or if there is no contract, which is what you were describing.

[00:22:26] Speaker 00:
Our architects sometimes take on a contractual duty of continuous supervision throughout the construction process.

[00:22:35] Speaker 00:
But you pay for that service.

[00:22:37] Speaker 00:
And here, that service wasn't paid for, particularly by the person one level below that that was

[00:22:45] Speaker 00:
designing the system, just one little part of that system.

[00:22:51] Speaker 03:
Yeah, you're talking about construction administration.

[00:22:53] Speaker 03:
Yeah.

[00:22:54] Speaker 03:
And yes, that was a separate service on the JTEC and studio plans contract.

[00:23:03] Speaker 03:
It was not asked for.

[00:23:07] Speaker 03:
JTEC was not provided in the shops.

[00:23:10] Speaker 03:
They were not asked to come on site to take a look.

[00:23:12] Speaker 00:
And so that's why that moment

[00:23:14] Speaker 00:
it takes on a greater significance here.

[00:23:17] Speaker 00:
Because after that, they will be an interloper in a way.

[00:23:21] Speaker 03:
Correct.

[00:23:23] Speaker 03:
In a sense that if they had continued with the construction administration, I would argue that that is a continuation of the same or similar services that they were providing as far as design goes.

[00:23:40] Speaker 04:
The district court relied on the lucky gate

[00:23:45] Speaker 04:
What was the other case?

[00:23:46] Speaker 04:
I've also forgotten the name.

[00:23:47] Speaker 03:
Witherspoon.

[00:23:48] Speaker 04:
Witherspoon?

[00:23:50] Speaker 04:
Oh no, Adelizzi, the Wyoming cases.

[00:23:53] Speaker 04:
Well, it talked about contractual breaches.

[00:23:55] Speaker 04:
That was a bit off base, wasn't it?

[00:23:57] Speaker 04:
I mean, we're not talking about a contractual breach here.

[00:24:02] Speaker 03:
Well, on both of them, they were talking about omissions.

[00:24:06] Speaker 03:
And it could be argued that J-10 omitted to catch this particular mistake.

[00:24:11] Speaker 03:
by the time it turned into final plans.

[00:24:13] Speaker 04:
But it was relying on the idea that they had of a contract, the existence of a contract between the parties to the litigation.

[00:24:22] Speaker 04:
And that up to a particular point, that contract continued and their services continued.

[00:24:28] Speaker 04:
And the court used that then and said, well, until the final plans were submitted, they were still basically under contract.

[00:24:36] Speaker 04:
this isn't a contract case, so I wondered if you, I'm confused by how that really works.

[00:24:42] Speaker 03:
Because in the way this particular statute is applied in Wyoming, it really doesn't matter whether it's a contract or a tort case.

[00:24:52] Speaker 03:
You're gonna be using the same, you've got the same two years.

[00:24:57] Speaker 03:
And this was addressed in Procop v. Hockhalter, which also actually mentions where the Wyoming Supreme Court

[00:25:06] Speaker 03:
includes and cites to the Runke case and the Witherspoon case.

[00:25:11] Speaker 03:
Now in ProCop was where they were talking about you cannot parse a single professional relationship into a tort and contract in order to extend your statute of limitations.

[00:25:28] Speaker 03:
As far as the professional liability of the statute of limitations is concerned, it's two years.

[00:25:35] Speaker 03:
As far as the contract statute of limitations in Wyoming, it's 10.

[00:25:42] Speaker 03:
And that is why the plaintiff and pro cop was wanting to use the contractual statute of limitations instead of the professional liability statute of limitations.

[00:25:55] Speaker 03:
The other case that has actually come before this court

[00:25:59] Speaker 03:
is Fertig v. Sagewick, where you had a plaintiff that was trying to sue a licensed professional that it was not in privity with, and where the licensed professional was actually working on behalf of an insurance company for an electrician that had allegedly done some negligent work in a barn which resulted in a fire in the barn and burning it down.

[00:26:27] Speaker 03:
In that case, even though there was no privity or contract between the plaintiff and this particular licensed professional doing this work, the court still upheld the 1-3, that dash 107, as far as the two years was concerned.

[00:26:46] Speaker 03:
It is the act.

[00:26:48] Speaker 00:
It is the cause of the act.

[00:26:51] Speaker 00:
In that case, what was the measuring event that started the statute running?

[00:26:57] Speaker 03:
The start of the statute was the report, as far as the report that came out of the licensed professional.

[00:27:07] Speaker 03:
However, to extend that, the plaintiff did not file until three years after he had admitted that he knew of the issue.

[00:27:20] Speaker 03:
Because it was three years after the discovery, the statute, of course, completely bars it.

[00:27:27] Speaker 03:
So they didn't have to go back to the actual report date and argue about when the report was made.

[00:27:35] Speaker 01:
Why didn't the negligence occur here though when the design flawed plan was handed over to the architect?

[00:27:47] Speaker 03:
On May 31st, 2018.

[00:27:49] Speaker 03:
Not earlier.

[00:27:51] Speaker 03:
May 31st, 2018 is the last date of any changes that JTIC provided to the contractor.

[00:27:59] Speaker 01:
I'm suggesting the negligence occurred when they gave plan to the contractor.

[00:28:05] Speaker 03:
But the thing is, the May 31st, 2018 is the sixth revision of the water entry details.

[00:28:15] Speaker 03:
So in other words, if we're going to be going back to when the original water entry detail was designed, what that does is it binds the engineer to that particular design decision.

[00:28:27] Speaker 01:
And it pretty well takes out... No, it could always be a change, but if it remains in the plan and is the ultimate cause of the injury, didn't the negligence occur when that

[00:28:44] Speaker 01:
defect was delivered to the contractor.

[00:28:48] Speaker 03:
Well, I would go back to the massacre case where the Wyoming Supreme Court again states that it's not necessarily the mistake, but rather the adherence to that mistake that causes the injury.

[00:29:04] Speaker 00:
Well, it is the original mistake that caused the injury.

[00:29:09] Speaker 00:
It may have been exacerbated by the failure to correct it.

[00:29:13] Speaker 00:
But certainly submitting the wrongful plan looked at just by itself caused an injury.

[00:29:21] Speaker 00:
Now maybe there was a chance to remedy that injury cause that wasn't taken.

[00:29:30] Speaker 00:
So there might have been a cause of action for an affirmative mistake and then another action for a failure to correct.

[00:29:41] Speaker 00:
Those are two different

[00:29:42] Speaker 00:
kinds of claims, and they might be measured by different statutes of limitation.

[00:29:48] Speaker 03:
I would also say that if we continue down this path, what's going to happen is that you will be requiring plaintiffs and defendants to take a look at a set of plans and determine when a design decision was made, when each design choice was made.

[00:30:05] Speaker 00:
No, not when internally it was made, it was when the product

[00:30:10] Speaker 00:
was delivered to the client intending to be the final product.

[00:30:16] Speaker 03:
But it seems like there's some confusion here then.

[00:30:20] Speaker 03:
It sounds like the design plan was made on revision.

[00:30:23] Speaker 03:
The design choice, or the negligence that is being alleged here, was made on revision three.

[00:30:31] Speaker 03:
However, and that date of revision three, I believe, is March 6, 2018.

[00:30:37] Speaker 04:
March 1, 2018.

[00:30:39] Speaker 03:
March 1st of 2018.

[00:30:42] Speaker 03:
Well, revision 6, it goes through two more revisions before it hits May 31st, 2018 of revision 6 of this water entry due to.

[00:30:54] Speaker 03:
And again, it starts to

[00:30:58] Speaker 03:
pervade into the rest of the plan set and doesn't take into account the continuity of the plan set.

[00:31:07] Speaker 04:
Could you answer my question about the Wyoming Supreme Court and maybe this would be a case for them to be certified?

[00:31:14] Speaker 04:
Did you consider that asking?

[00:31:16] Speaker 03:
I did consider it, but no, I did not certify it to them.

[00:31:20] Speaker 04:
Well, I mean, you would ask for it.

[00:31:22] Speaker 04:
You didn't ask in the district court, I assume.

[00:31:24] Speaker 03:
No.

[00:31:26] Speaker 04:
Do you think that would be appropriate here?

[00:31:28] Speaker 03:
I think it would be a good idea.

[00:31:30] Speaker 03:
I think it would be, just because of the ramifications of this particular case, I think it would be a good idea to submit it to the Wyoming Supreme Court.

[00:31:41] Speaker 00:
But you're aware of our general reticence to certify if there hasn't been a consistent request for certification from the beginning.

[00:31:50] Speaker 00:
And that's not 100% ironclad, probably, because it's discretionary.

[00:31:55] Speaker 00:
But it certainly has been almost uniformly

[00:31:57] Speaker 00:
the rule we would apply.

[00:32:01] Speaker 03:
No, I do understand that.

[00:32:03] Speaker 03:
But again, I just want to come back to one more point on this.

[00:32:08] Speaker 03:
If we take a look at the plan set, the overall plan set of mechanical plans for the Grossman, we have the detail sheet which has the water entry detail with the date of March 1, 2018.

[00:32:21] Speaker 03:
That, along with the other details on that sheet, are incorporated into the plan sheet

[00:32:27] Speaker 03:
on pages, I think it's 75 of the record.

[00:32:30] Speaker 03:
And that plan sheet has a date of May 17th, 2018.

[00:32:37] Speaker 03:
So if you've got these details with the date of March 1st, 2018 being incorporated into a plan of May 17th, 2018, which is clearly barred from using the appellant's argument,

[00:32:52] Speaker 03:
I mean, at that point, the district court will have to determine how much of the relation between the two plan sets actually pervades each other.

[00:33:01] Speaker 03:
Is one now going to push the burden onto the plan to show that due diligence could not have found us, or is it going to be barred by time?

[00:33:13] Speaker 01:
Thank you.

[00:33:14] Speaker 01:
Your time has expired.

[00:33:15] Speaker 01:
We appreciate the argument.

[00:33:16] Speaker 01:
And could you give minute 30 for Mr. Reardon?

[00:33:27] Speaker 03:
Thank you, and we ask for your vote.

[00:33:35] Speaker 02:
Thank you, Your Honor.

[00:33:37] Speaker 02:
Just a minute, or a second.

[00:33:39] Speaker 02:
There we go.

[00:33:40] Speaker 02:
I'm sorry.

[00:33:43] Speaker 02:
Just a quick clarification.

[00:33:46] Speaker 02:
The earliest copy of the plan that we have that's in the record is the March 1st, with the water entry details.

[00:33:55] Speaker 02:
But you can tell by the revisions that are listed on there that that water entry detail had not changed at all since August, the August 2017 date when they were submitted plans.

[00:34:11] Speaker 02:
So when Ms.

[00:34:12] Speaker 02:
Hernandez was saying that the water entry detail was revised six times, that's not correct.

[00:34:19] Speaker 02:
the plan, because water entry detail is a part of mechanical plan M0.

[00:34:27] Speaker 02:
M0 was revised six times, with the final one being the May 31, 2018.

[00:34:34] Speaker 02:
Water entry detail, placement of the PRV, and the placement of the water filter, that never changed.

[00:34:40] Speaker 02:
Never changed from the permit set.

[00:34:45] Speaker 02:
Real quick, I'm pro-cop and ranking.

[00:34:49] Speaker 02:
both those courts emphasized that their decision was, and it didn't have anything to do really with the, so much I should say, when that trigger date is, especially pro-court, because that was an issue between the two statutes of limitation time periods between contract and tort.

[00:35:11] Speaker 02:
But what both courts emphasized with emphasizing those cases was the presence of a contractual relationship.

[00:35:19] Speaker 02:
in steering the court to where they went.

[00:35:23] Speaker 02:
So just wanted to clarify that.

[00:35:25] Speaker 02:
Thank you.

[00:35:25] Speaker 01:
We would ask that District Court's decision be reversed.

[00:35:30] Speaker 01:
Thank you.

[00:35:31] Speaker 01:
Council, you're excused and the case is submitted.

[00:35:35] Speaker 01:
The court will be in recess until