State ex rel. Wyoming Workers' Compensation Division v. Halstead

795 P.2d 760, 1990 Wyo. LEXIS 79

• Court: Wyoming Supreme Court
• Decided: July 17, 1990
• Docket: No. 89-130
• Status: Published

Opinions

URBIGKIT, Justice.

The Wyoming Workers’ Compensation Division (State Fund) appeals from a summary judgment¹ in favor of Jordon Jody Halstead by an administrative hearing examiner who granted benefits to the child who had been born out of wedlock after his young father was killed in a work related accident. The State Fund contested the benefits granted to Jordon Jody Halstead on grounds that paternity had not been established and the statute of limitations for filing a claim had expired by the time paternity was established.

Because summary judgment was not available in this case, we reverse and remand.

FACTS

In 1985, sixteen year old Jody Glenn Dodgion became intimately associated with Alice lone Colley, who became pregnant from the relationship.² Jody suffered a critical head wound at his first day of work on September 24, 1985, was declared disabled in early November and died December 4, 1985. On May 1, 1986, Jody’s son, Jordan Jody Halstead, was born and his young mother, Alice lone Colley, was appointed guardian on December 11, 1986. Chronologically thereafter, as a proceeding relating to the small child, a petition was filed on February 5,1987 to establish paternity and, on May 9, 1988, a claim for death benefits for the dependent child under worker’s compensation was filed³ to which the State Fund objected. On June 2, 1988, the district court entered an order establishing Jody Glenn Dodgion as the father of Jordan Jody Halstead.⁴

ISSUES

The State Fund questions whether:

I. * * * [t]he administrative hearing officer err[ed] when she granted summary judgment to the appellee.

II. * * * [t]he order issued by the administrative hearing officer [was] arbitrary, capricious and an abuse of discretion or unsupported by substantial evidence in her findings that:

A. The Clerk of District Court is a party to a Workers’ Compensation case, is an agent of the State, and the State is therefore bound by representations made by the Clerk’s Office in reference to Workers’ Compensation claims.

B. The statute of limitations found at § 27-14-503, W.S.1977, is tolled pending the establishment of paternity.

C. Appellee did not have standing to claim dependent child benefits until paternity in the deceased worker was established.

III. * * * [t]he administrative hearing officer err[ed] in ruling that the claim for benefits was not barred by § 27-14-503, W.S.1977, and in not granting summary judgment for appellant.

SUMMARY JUDGMENT IS NOT GENERALLY AVAILABLE TO HEARING EXAMINERS

In the first issue, the State Fund argued there was a genuine issue of material fact rendering summary judgment inappropriate. Then it its third issue, the State Fund argued summary judgment was appropriate for it because there was no genuine issue of material fact presented. Both issues are resolved by reference to Jackson v. State ex rel. Wyoming Worker’s Comp. Div., 786 P.2d 874 (Wyo.1990).⁵

Summary judgment is not available in contested worker’s compensation cases under Jackson unless it falls within the one exception in which the “agency’s sole task is to determine questions of law or public policy.” Jackson, 786 P.2d at 879. See Walker v. Karpan, 726 P.2d 82 (Wyo.1986). That exception, in what is essentially a dismissal on the pleading similar to W.R. C.P. 12(b)(6), is not available to either party here because the pleadings do not establish either litigant to be entitled to relief as a matter of law. Jackson, 786 P.2d 874; Herring v. Welltech, Inc., 715 P.2d 553 (Wyo.1986); Federal Power Commission v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112, reh’g denied 377 U.S. 974, 377 U.S. 984, 84 S.Ct. 1881, 12 L.Ed.2d 745, 12 L.Ed.2d 753 (1964); Massachusetts Outdoor Advertising Council v. Outdoor Advertising Bd., 9 Mass.App. 775, 405 N.E.2d 151 (1980).

RESOLUTION OF THE CASE ON REMAND

With remand required, this court is still faced with three issues: (1) whether the State is bound under the doctrine of estoppel by representations allegedly made by the clerk of the district court; (2) whether the statute of limitations under W.S. 27-14-503 bars this claim; and (3) whether respondent was required to file a claim for benefits before paternity could be established.

For the reasons which follow, we hold the statute of limitations did not bar this claim because the statute was tolled until parentage was determined — an indispensable requirement for eligibility in this case. This holding negates the need to discuss the issue of estoppel.⁶

The State Fund’s issues essentially question the effect of W.S. 27-14-503 and 27-14-505 in this case.

Those statutes provide in relevant part:⁷

(a) An award for compensation involving an injury which is the result of a single brief occurrence rather than occurring over a substantial period of time shall not be made unless in addition to the proper and timely filing of the reports of the accident, an application or claim for award is filed within one (1) year after the date the accident occurred or for injuries not readily apparent, within one (1) year after discovery of the injury by the employee. The report of accident is not a claim for compensation.

W.S. 27-14-503.

If an injured employee is mentally incompetent or a minor, or where death results from the injury and any of his dependents are mentally incompetent or minors, at the time when any right or privilege accrues under this act, no limitation of time provided for in this act shall run so long as the mentally incompetent or minor has no guardian.

W.S. 27-14-505 (emphasis added).

We interpret the clause “at the time when any right or privilege accrues under this act” in W.S. 27-14-505 to mean Jordan Jody Halstead’s right accrued on June 2, 1988 when the order of the district court determined Jordon Jody Halstead, within his status of illegitimacy, was the child of the deceased worker. The district court determination then made the child a valid claimant. Consequently, we find that the date of determination of parentage was the date the right to claim benefits accrued. Under the statute, the right to claim benefits would not have expired at the one year period after the guardian had been appointed because the child’s familial rights to be a claimant came to exist with his determination by a decree of parentage that the decedent worker was his father. The good cause case, Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948) is compatible in result. We consequently hold that the statute of limitation began to run on June 2, 1988 with the entry of the parentage decree.

In the similar context of Bauer v. State ex rel. Wyoming Worker’s Compensation Div., 695 P.2d 1048 (Wyo.1985), this court determined the limitation period was no bar under estoppel. The same reasoning can be applied to an expiration of a right to claim before that right to claim comes to exist under the statute. Mominee v. Scherbarth, 28 Ohio St.3d 270, 503 N.E.2d 717 (1986). A principal responsibility in statutory interpretation is to apply the legislative intent demonstrable from the language utilized in order to sustain its constitutionality. Our decision that here the limitation period for Jordan Jody Halstead started when his paternity had been established, finds support from criteria in two different areas of constitutional law development.

In first concept, as a principle logically rejective of petitioner’s argument, are the cases which address statutes of limitation limiting the time available for the parentage of the minor child to be determined, which issue evokes consideration of discrimination between legitimate and illegitimate children violative of equal protection and due process rights under the Fourteenth Amendment of the United States Constitution. Criteria addressing unjustified burdens upon the illegitimate child as a constitutional deprivation are addressed in three decisions of the United States Supreme Court. Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). Any unduly restrictive time limitations for proof of parentage is unconstitutional. Enforcement of a parental support obligation within the illegitimacy status is, dependent upon determination of the parentage of the father and a time limitation that imposes a burden on the illegitimate child, significantly different from the status of the legitimate child which was determined to be unconstitutional under the equal protection clause of the Fourteenth Amendment. Pickett, 462 U.S. at 18, 103 S.Ct. at 2209. The Pickett- Mills cases resulted in substantial state court decisions also voiding unduly restrictive statutory limitations for illegitimate children to prove a parentage relationship with the father based normally on a Fourteenth Amendment concept of due process and equal protection. State, Dept. of Health and Rehabilitative Services, on Behalf of Gillespie v. West, 378 So.2d 1220 (Fla.1979), four year statute of limitation unconstitutional; Dornfeld v. Julian, 104 Ill.2d 261, 84 Ill.Dec. 471, 472 N.E.2d 431 (1984), two year statute of limitation unconstitutional; State ex rel. Rake v. Ohden, 346 N.W.2d 826 (Iowa 1984), two year statute of limitation unconstitutional; Alexander v. Com. ex rel. Mills, 708 S.W.2d 102 (Ky.App.1986), four year statute of limitation unconstitutional; Com. ex rel. Lepard v. Young, 666 S.W.2d 735 (Ky.1983), three year statute of limitation unconstitutional; Frick v. Maldonado, 296 Md. 304, 462 A.2d 1206 (1983), two year statute of limitation unconstitutional; State Dept. of Revenue v. Wilson, 634 P.2d 172 (Mont.1981); three year statute of limitation unconstitutional; State ex rel. Adult and Family Services Div. v. Bradley, 295 Or. 216, 666 P.2d 249 (1983), six year statute of limitation unconstitutional; Tennessee Dept. of Human Services v. Hinton, 660 S.W.2d 506 (Tenn.App.1983), two year statute of limitation unconstitutional. Cf. Astemborski v. Susmarski, 499 Pa. 99, 451 A.2d 1012 (1982), cert. granted and judgment vacated 462 U.S. 1127, 103 S.Ct. 3105, 77 L.Ed.2d 1360, remanded 502 Pa. 409, 466 A.2d 1018 (1983), a six year statute of limitation to bring paternity action was determined to be constitutional.

The constitutional principles of Pickett and Mills assuring an adequate opportunity for a child to prove parentage to secure support cannot be distinguished from the child’s right to also prove parentage to acquire decedent benefits under worker’s compensation. We construe the limitation period to be constitutional under due process and equal protection by rejecting a discriminatory result against an illegitimate child. Heather v. Delta Drilling Co., 533 P.2d 1211 (Wyo.1975). With proof of parentage, the limitation period commences, provided the guardianship requirement of the compensation statute is met. W.S. 27-14-503. See likewise regarding the rights of the father for due process in any parentage denial, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and In re Adoption of B.G.S., 556 So.2d 545 (La.1990).

There is a second cluster of constitutionally disposed cases addressing statute of repose where there is the potential for the period for filing a claim to terminate before the incident of damage or loss has actually occurred. See, for example, Phillips v. ABC Builders, Inc., 611 P.2d 821 (Wyo.1980); Carr v. Broward County, 541 So.2d 92 (Fla.1989); Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984); Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514 (1982); Daugaard v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D.1984); Neagle v. Nelson, 685 S.W.2d 11 (Tex.1985); Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984); and Funk v. Wollin Silo & Equipment, Inc., 148 Wis.2d 59, 435 N.W.2d 244 (1989). Those cases have a logical relevance to this case, where premised on a constitutional right, to be able to- assert a remedy before a statutory abnegation of the right occurs. Shessel, 316 S.E.2d 155; Neagle, 685 S.W.2d 11. Although we have no equivalent worker’s compensation precedent which has been presented or found in our research, these cases appropriately direct attention to the same problem of exhaustion of the right to a remedy before the opportunity for its utilization may have occurred, Hardy v. VerMeulen, 32 Ohio St.3d 45, 512 N.E.2d 626 (1987), cert. denied 484 U.S. 1066, 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988), and sometimes before the incident of damage or loss has occurred, Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984). Although currently centered in the field of medical malpractice,⁸ Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 514 N.E.2d 709 (1987), the cases involve a broad array of statutes where a repose and not a limitation function is introduced as the boundary of time for action by the injured party.⁹ Jackson v. Mannesmann Demag Corp., 435 So.2d 725 (Ala.1983); Heath v. Sears, Roebuck & Co., 123 N.H. 512, 464 A.2d 288 (1983); Hanson v. Williams County, 389 N.W.2d 319 (N.D.1986); Kennedy v. Cumberland Engineering Co., Inc., 471 A.2d 195 (R.I.1984); Daugaard, 349 N.W.2d 419. Within this class of cases, there is the injured child segment. Strahler v. St. Luke’s Hosp., 706 S.W.2d 7 (Mo.1986); Coffey v. Bresnahan, 127 N.H. 687, 506 A.2d 310 (1986); Mominee, 503 N.E.2d 717; Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). There is also within some of the cases an analytical trend that has developed which avoids the determination of textural unconstitutionality in the statute of repose situation by denying application of the limitation until a reasonable time after the right might have been pursued following damage and known knowledge of injury. Kohnke v. St. Paul Fire and Marine Ins. Co., 144 Wis.2d 352, 424 N.W.2d 191 (1988). This adaptation applies a condition to the statutory language that, despite its terms, if the incident of damage or discovery occurs after the expiration of the period provided, a reasonable time continues to exist for the claim to be made. Tucker v. Nichols, 431 So.2d 1263 (Ala.1983); Kenyon, 688 P.2d at 979, Cameron, J., concurring; Austin v. Litvak, 682 P.2d 41 (Colo.1984). See also Coffey, 506 A.2d 310.

The obvious philosophical and sociological concern that a right which actually exists as the result of the misconduct of a person may be lost before anything can be done to pursue attainment of a remedy has authored an obvious trend either in construction to achieve constitutionality or a determination of unconstitutionality in these statute of repose cases. Phillips, 611 P.2d 821; Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980); Note, The Constitutionality of Statutes of Repose: Federalism Reigns, 38 Vand.L.Rev. 627, 644 (1985). A perspective of constitutionality which initially developed a number of years ago when statutes of repose first appeared in the construction and later products liability segments of the law has now developed a clear converse trend in recent result. See Note, The Unconstitutionality of Medical Malpractice Statutes of Repose. Judicial Conscience Versus Legislative Will, 34 Vill.L.Rev. 397 (1989) and most recent examples found in the Utah cases, Horton v. Goldminer’s Daughter, 785 P.2d 1087 (Utah 1989); Stilling v. Skankey, 784 P.2d 144 (Utah 1989); and Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989). In the Utah cases, the court held that the Utah architect’s and builder’s statute of repose establishing a seven year limitation was unconstitutional under the open court provision of the Utah Constitution. In analysis of the difference between a statute of limitation which provides a period of time after a right accrues to pursue action and a statute of repose which limits the time for a right of action even though the event may not have yet occurred from which the damage accrues, the Utah court in Horton and Sun Valley Water Beds of Utah, Inc. pursues the national precedent. The critical concern manifested in the whole periphery of statute of repose cases are those circumstances where the time runs out before the opportunity to pursue relief occurs, Funk, 435 N.W.2d 244, either because the event of damage has not yet developed, Note, Oklahoma’s Statute of Repose Limiting the Liability of Architects and Engineers for Negligence: A Potential Nightmare, 22 Tulsa L.J. 85, 105 (1986), or discovery of the injury may not have occurred, Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 (1983); Carson, 424 A.2d 825; Berry By and Through Berry v. Beech Aircraft, Corp., 717 P.2d 670 (Utah 1985). This problem is magnified in those cases where medical malpractice injuries to minor children are the subject matter of the litigation. Schwan v. Riverside Methodist Hosp., 6 Ohio St.3d 300, 452 N.E.2d 1337 (1983). See also Young v. Haines, 41 Cal.3d 883, 226 Cal.Rptr. 547, 718 P.2d 909 (1986). The same thesis is applied here to permit filing the claim after parentage has been established.

Another argument advanced by the State Fund requires attention. It is argued that parentage was not material and the date of its determination lacks adjudicatory significance for the proceeding. The concept of that argument is that the fetus was not dependent on the father at the date of his injury or death. This position argues that dependency alone and not parentage is the criterion. This argument has sustainable validity only if we say that a post-humous legitimate child is also not necessarily the dependent of the father. Discrimination based on the status of the child is constitutionally impermissible. Jordan v. Delta Drilling Co., 541 P.2d 39 (Wyo.1975); Gomez, 409 U.S. 535, 93 S.Ct. 872. Since we are obviously not willing to hold that a legitimate child may have rights as a child only if the mother is living with the father just prior to death, we will also hold for the purpose of this case that Jordan Jody Halstead was dependent on Jody Glenn Dodgion since the law specifically provides parental obligations which have effectuation upon birth. Heather, 533 P.2d 1211.¹⁰ Without parental determination, the enforceable dependency responsibility does not accrue since the functional factor in enforceability is the determination of that parental relationship. In this regard, we adopt the analysis on the subject utilized by the hearing examiner. As a matter of law, the prospective child is a dependent of the putative father if in fact the child, when born, is actually his child. Bowers v. Wyoming State Treasurer ex rel. Workmen’s Compensation Division, 593 P.2d 182 (Wyo.1979); Jordan, 541 P.2d 39; Gomez, 409 U.S. 535, 93 S.Ct. 872.

We are further sustained in this decision by the absence of countervailing authority. The State Fund provided none and our research has not developed precedent to the contrary. The constitutional perspective of the rights of the child, whether illegitimate or legitimate, was "determined by the United States Supreme Court in its Fourteenth Amendment, due process and equal protection cases of Pickett, Mills, and Gomez. The foundational case for Wyoming is Heather, cited by the State Fund, where the court reversed a death benefit denial rendered on the basis that illegitimacy deprived the child of entitlement to benefit under the statute. In Heather, the baby was only a few months old when the admitted father was killed. By that time, no proceedings to determine parentage or assess support responsibility had been initiated and no actual support had been received. The court found a presumption of dependency from the fact of parentage. Here, the hearing examiner found a status of dependency by the status and relationship between the mother and father and the obligation that the father had for the child yet then unborn.

We recognize that the State Fund takes comfort in Jim’s Water Service v. Eayrs, 590 P.2d 1346 (Wyo.1979) to provide support for a rule that actual economic dependency is the test rather than parental responsibility. We will confine Jim’s Water Service to its facts of step-children which present a far different arena of responsibility than those for which the parent is impressed by law with support obligations for his or her children. We will not apply Jim’s Water Service to control the legal status of statutory dependency when a child is born after the death of its father who had no opportunity to acknowledge or deny that fatherhood. Heather, 533 P.2d 1211, which was followed by Jim’s Water Service, 590 P.2d 1346 and then followed by Bowers, 593 P.2d 182, clearly prohibited any discrimination between children, dependent on inter-marriage of their parents. The strong support stated in Bowers for Heather convinces us that it reflects the current law of required equality in availability for support between the natural child and the child born out of wedlock.

Heather carefully considers the federal decisions, the philosophy for change and concludes that such a distinction between children

“ * * * establishes a discriminatory classification which is justified by no legitimate state interest and violates the equal protection clause of the Fourteenth Amendment to the [CJonst-itution of the United States.” 533 P.2d at 1212.[¹¹]

Bowers, 593 P.2d at 183-84.

Reversed and remanded.

GOLDEN, J., concurs in the result only.

ROONEY, Retired J., filed an opinion specially concurring in part and dissenting in part.

1 . When appellate briefs include page references to the record to support factual claims made in the briefs, those claims can be checked at a glance. When the briefs contain no page references, valuable legal research time is expended because the entire record must be searched for each claim. Petitioner's thirty-four page brief did not contain a single cite to the record. We advise in the strongest terms that all briefs comply with W.R.A.P. 5.01(3). See Condict v. Condict, No. 89-51 (Wyo. January 24, 1990) (reh’g denied February 7, 1990) (order dismissing appeal with prejudice).

2 . There was no evidence to indicate Jody Glenn Dodgion was aware by the time he died that Alice lone Colley had become pregnant.

3 . The May 9, 1988 claim for death benefits for the dependent child, which initiated the hearing and presents this appeal, is not to be found in the record. The concurrence of the litigants and the assumptions of the briefing suffice to obviate remand on this basis alone, but clarification of the record is required that a claim was in fact made before further final action is taken.

4 . There was a third proceeding when, by declaratory judgment, the teenage mother contested whether members of the decedent’s family could be claimants in a wrongful death proceeding. This issue was decided in Butler v. Halstead By and Through Colley, 770 P.2d 698 (Wyo.1989).

5 . Jackson, 786 P.2d 874 had not been decided when this case was argued before this court. The effect of a more recent statutory change will not be presently considered. Wyo.Sess. Laws ch. 88 (1990) may or may not have effectively superceded Jackson.

6 . The estoppel argument grows from an allegation that personnel in the Sweetwater County District Court clerk's office furnished information to the mother of Alice Colley, who was later appointed guardian ad litem and who brings this suit for the benefit of the young child. The State Fund contests both what was said to this third party and authority of personnel in the clerk's office within the newly centralized state agency system. Surprisingly, no discussion has surfaced about the direction given by the state agency to the clerk of court which may have constituted authority to recommend and, to some degree, notice to the decedent’s family by an October 18, 1985 letter.

Due to the number and frequency of telephone calls we have" received concerning above referenced case, I thought I should advise you of our opinion on certain issued [sic] discussed with us.

******

(3). Someone on his behalf should apply for permanent total disability with payments going to a legal guardian and should Jody die as a result of his injuries, all payments should be stopped with balance of award going back to the fund or funds from which award was made.

(4). Since Jody is an unmarried minor with no dependents, there would be not [sic] further death benefits made, other than for funeral expenses.

(5). Jody's mother and/or father can not prove entitlement to dependent parent benefits.

******

I have not yet had the chance to review any medical reports so these opinions are based upon which I do have and upon telephone conversations. In no way am I trying to tell the court how to handle this difficult case and I thank you for allowing me to express my opinion.

These statements by the State Fund become significant when the denial-objection decision was furnished on May 17, 1988, which first stated an objection based on the expiration of the statute of limitations and then added "[ajlso, there has been no proof of paternity in this case.”

If a decision on the basis of estoppel proved available, estoppel based on the communications from the State Fund might have significance. Obviously, the State Fund creates that kind of question if it says that a claim is objectionable because there is no determination of parentage until the statute of limitation expires and then raises the statute of limitation to defeat the claim after parentage htfs been determined. An argument can be made that if the State Fund objects to the claim until parentage is determined, that once parentage is determined and for some reasonable time thereafter, the claim can be made. At issue, then, is whether parentage must be determined in the worker’s compensation proceeding or may first be determined in the statutory parentage process. Neither party has briefed nor argued estoppel by act of the state agency itself.

7 . The State Fund cites W.S. 27-14-503(a) and 27-14-505. Those statutes were found in the prior law and are similar but not identical with the present provisions. The 1986 recodification, effective June 23, 1986, is to be applied procedurally as long as a substantive right is not adversely affected. Owens v. Superior Court of Los Angeles County, 52 Cal.2d 822, 345 P.2d 921 (1959). See also Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953, reh’g denied 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375 (1958) and 73 Am.Jur.2d Statutes § 354 at 490 (1974). Processing was handled under the hearing examiner administrative structure that was first created by the 1986 enactment. Bemis v. Texaco, Inc., 400 P.2d 529, reh’g denied 401 P.2d 708 (Wyo.1965) is not inapposite since the issue there concerned substantive rights and not procedural provisions changed by a newly enacted statute.

8 . See Note, The Unconstitutionality of Medical Malpractice Statutes of Repose. Judicial Conscience Versus Legislative Will, 34 Vill.L.Rev. 397 (1989).

9 . Statutes of repose and statutes of limitations are often confused. They are similar in that both prescribe the time period within which a plaintiff may commence his suit. The distinguishing feature between the two is the time at which the respective periods commence. Generally, in medical malpractice actions, if the plaintiffs cause of action accrues and the statutory period commences when the injury occurs or, as is most often the case, when the plaintiff is or should be aware that he has been injured, the statute is properly termed a statute of limitations. If the statutory period commences upon the occurrence of an event, regardless of when the injury occurs, at a time when the plaintiff may or may not be aware of any injury, the statute is properly termed a statute of repose. In the latter case the repose period commences upon the occurrence of an event, such as the negligent act or omission of the health care practitioner, but the injury caused by this act or omission may be latent and therefore not manifest itself until after the statutory period has elapsed. Consequently, the plaintiffs claim may be barred before he is or should be aware that he has been injured or has a claim. Note, supra n. 8, 34 Vill.L.Rev. at 400-01 (footnotes omitted). See Com. v. Owens-Corning Fiberglass Corp., 238 Va. 595, 385 S.E.2d 865 (1989) (differentiation noted when effecting governmental entities). See also McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am.U.L.Rev. 579 (1981). Phillips, 611 P.2d 821 is not directly defined in designation to be a statute of repose case, although in terminology, the differentiation is recognized. ‘‘[T]he statute in question, * * *, is not a statute of limitations but is a grant of immunity from suit.” Id. at 831. Cases this court cited generally for precedential support include some of the more influential statute of repose decisions, including Overland Const. Co., Inc. v. Sirmons, 369 So.2d 572 (Fla.1979); Fujioka v. Kam, 55 Haw. 7, 514 P.2d 568 (1973); Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588 (1967); Saylor v. Hall, 497 S.W.2d 218 (Ky.1973); Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548 (Minn.1977); Loyal Order of Moose, Lodge 1785 v. Cavaness, 563 P.2d 143 (Okl.1977); Broome v. Truluck, 270 S.C. 227, 241 S.E.2d 739 (1978); and Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 225 N.W.2d 454 (1975). Compare Reynolds v. Porter, 760 P.2d 816 (Okl.1988), where that court determined the statute was a statute of limitation without the benefit of the discovery rule and was also unconstitutional under the Oklahoma Constitution.

10 . This legal duty is established by both civil and criminal remedies. See W.S. 14-2-104, right to bring paternity actions; effect of agreements; proceedings when child is not yet born; W.S. 14-2-113, effect and contents of judgment or order; new birth certificate; determination of support; continuing jurisdiction; W.S. 14-2-204, liability for support; right of action; venue; service; measure of recovery; remedy is cumulative; execution; W.S. 20-3-101 through 20-3-104, desertion of wife or children; and W.S. 20-6-101 through 20-6-401, child support enforcement as a list which is not exhaustive and relates in some fashion to support of children.

11 . Respondent argues that the State Fund raised the dependency issue first on appeal. ‘“Our rule is that in the absence of fundamental error affecting a substantial right of the appellant or involving the jurisdiction of the court, we do not consider questions sought to be raised for the first time on appeal.'" Hyde v. State, 769 P.2d 376, 381 (Wyo.1989) (quoting Jahnke v. State, 692 P.2d 911, 928 (Wyo.1984)). Whether or not the question was properly raised, we address the subject to determine that discrimination cannot be justified between children based on the marital status of the parents as the constitutional concept of both Heather and Bowers. Initial action of the State Fund when it suggested existence of a requirement to establish parentage for authentication of a claim is compatible with our recognition of the child’s constitutional interest involved in determination of the familial relationship.