Contingent Rule 14 Third-Party Claims Must Still Survive Rule 56: Speculation and Incomplete Discovery Do Not Defeat Summary Judgment Without Rule 56(d) Compliance

3.1. Precedents Cited

A. Wyoming summary judgment framework and the burden-shifting model

• Leeks Canyon Ranch, LLC v. Jackson Hole Hereford Ranch, LLC: The Court used this decision to restate the governing standard under W.R.C.P. 56(a): summary judgment is appropriate when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. It also reiterates the appellate posture—viewing evidence in the light most favorable to the nonmovant.
• Leonhardt v. Big Horn Cnty. Sheriff's Off.: Cited for the definition of “material fact” and for the proposition that a movant without the ultimate burden of persuasion can make a prima facie case by showing a lack of evidence on an essential element of the opponent’s claim.
• Lewis v. Francis and Little Med. Creek Ranch, Inc. v. D'Elia: These cases supply the mechanics: once the movant makes a prima facie showing, the burden shifts; the nonmovant must present competent, admissible evidence and “specific facts,” not allegations, conclusory statements, or mere opinion.
• Page v. Meyers and Hatton v. Energy Elec. Co.: The Court relied on these decisions for the strict rule that speculation, conjecture, and possibilities are insufficient to establish a genuine issue of material fact.

B. Summary judgment in third-party/indemnity contexts

• Fraley v. Worthington: The Court accepted the principle that Rule 14 permits impleader even if the third-party claim has not yet accrued, so long as the claim is contingent on the plaintiff’s success and will accrue when liability is determined or the claim is satisfied. Importantly, the Court treated this as an authorization to implead—not an immunity from scrutiny under Rule 56.
• Robertson v. TWP, Inc.: This Wyoming precedent directly supports disposing of third-party claims by summary judgment where the third-party plaintiff cannot show the third-party defendant was a proximate cause of the underlying injuries/damages for which indemnity is sought. The Court used it as a Wyoming analog validating the procedural posture here.
• IMC Chems., Inc. v. Niro, Inc. (and federal practice authorities): The Court leaned on IMC Chems. for a pragmatic impleader rule: while a third-party plaintiff need not “adopt” the original plaintiff’s allegations, it must still identify “some evidence of fault” by the third-party defendant to defeat summary judgment—even if the third-party plaintiff otherwise disputes the plaintiff’s defect narrative.
• Schwartz v. Compagnie Gen. Transatlantique: Quoted (through IMC Chems.) for the proposition that F.R.C.P. 56 permits a third-party defendant to seek summary judgment “at any time” if it clearly appears no valid claim exists.

C. Wyoming treatment of conclusory expert statements and conflicting inferences

• Blackmore v. Davis Oil Co.: The Court used Blackmore in two ways: (1) conclusory expert submissions do not create a genuine issue of material fact; and (2) an inference contrary to direct testimony cannot stand against uncontroverted testimony to the contrary.
• Bear Peak Res., LLC v. Peak Powder River Res., LLC: Reinforced that conclusory statements, categorical assertions, and unsupported opinions are inadequate at summary judgment, and that summary-judgment evidence must be trial-admissible and professionally reliable.

D. Adequate time for discovery and the non-self-executing nature of Rule 56(d)

• Jacobson v. Cobbs: Stands for the proposition that discovery need not be complete before summary judgment; the question is whether adequate time for discovery has been allowed.
• Kimbley v. Green River: Supports the Court’s approach that federal authority is “highly persuasive” where Wyoming’s rules mirror federal rules (here, W.R.C.P. 56 and F.R.C.P. 56).
• Rocky Mountain Prestress, LLC v. Liberty Mut. Fire Ins. Co., Jones v. Secord, Dreiling v. Peugeot Motors of Am., Inc., and Adler v. Wal-Mart Stores, Inc.: These cases collectively establish the federal Rule 56(d) doctrine adopted by the Court: Rule 56(d) is not self-executing; a party must invoke it via an affidavit/declaration specifying why essential facts are unavailable; failing to do so is at the party’s peril.

E. Additional Wyoming summary-judgment support

• Warwick v. Accessible Space, Inc.: Cited (through Lewis) as part of the line of authority recognizing that a movant can meet its prima facie burden by showing absence of evidence on an essential element.

3.2. Legal Reasoning

1. Rule 14 permits contingent impleader, but does not lower Rule 56 evidentiary standards. The Court acknowledged the legitimacy of impleading a “may be liable” party under W.R.C.P. 14, including contingent indemnity claims. But once the third-party defendant moves under Rule 56, the case becomes evidentiary: the third-party plaintiff must show a triable fact issue as to the third-party defendant’s fault/causation relating to the damages for which shifting is sought.
2. BHG’s prima facie showing attacked an essential element: that BHG’s work caused any alleged defect. BHG used the SBSA inspection report (Gunwerks’s expert) to isolate which items might even touch BHG’s scope (windows), and then supplied evidence that: (a) Sletten installed the sills implicated by negative slope; (b) BHG did not install EPS board; and (c) another subcontractor modified the fire doors. This satisfied the “lack of evidence” prima facie standard described in Leonhardt v. Big Horn Cnty. Sheriff's Off. and Lewis v. Francis.
3. Sletten’s response failed because it offered speculation rather than specific, admissible facts of defect and causation. Sletten relied on expert materials suggesting water intrusion “may” be from windows and dented frames “may” exist, without tying those observations to BHG’s workmanship, to the alleged damages, or to a reliable causation opinion. Under Page v. Meyers and Hatton v. Energy Elec. Co., such possibilities do not create a genuine dispute.
4. Direct, uncontroverted testimony defeats contrary inference. BHG’s expert provided direct evidence: testing showed no moisture intrusion at windows; windows were properly installed; windows were not the source of water. The Court held Sletten’s best-case inference (windows “may” contribute) could not stand against uncontroverted direct testimony, following Blackmore v. Davis Oil Co..
5. “Discovery is ongoing” is not a substitute for Rule 56(d). Sletten argued summary judgment was premature, but did not file the affidavit/declaration required by W.R.C.P. 56(d) explaining what facts were unavailable and why. Following federal authority (notably Rocky Mountain Prestress, LLC v. Liberty Mut. Fire Ins. Co.), the Court treated Rule 56(d) as non-self-executing and held Sletten bore the risk of failing to invoke it.

A notable factual and contractual backdrop is the subcontract’s express indemnity provision requiring BHG to indemnify Sletten for liability caused by BHG’s negligent act or omission. The Court’s approach implicitly treats the indemnity clause as irrelevant unless Sletten can first produce evidence that BHG’s negligence caused the damages for which indemnity is sought—i.e., indemnity is not self-proving; it is causation-dependent.

3.3. Impact

• Third-party practice in construction defect cases: General contractors can continue impleading subcontractors early under W.R.C.P. 14, but this case clarifies they must be prepared—if challenged under Rule 56—to present competent evidence linking a subcontractor’s work to the alleged defect and claimed damages. “Placeholder” impleader claims supported only by the plaintiff’s evolving defect theories are vulnerable.
• Expert-proof discipline at summary judgment: The Court’s insistence on non-speculative causation opinions (and its reliance on Blackmore v. Davis Oil Co. and Bear Peak Res., LLC v. Peak Powder River Res., LLC) will likely increase pressure on parties to procure targeted expert testimony early enough to survive dispositive motions.
• Rule 56(d) as a procedural “gatekeeper”: The opinion effectively teaches litigators that arguments about incomplete discovery must be converted into a formal W.R.C.P. 56(d) request supported by affidavit/declaration. Otherwise, courts may proceed to merits-based summary judgment even where discovery is ongoing.
• Risk allocation and indemnity enforcement: Even where express indemnity exists, the indemnitee must still meet evidentiary burdens on negligence/causation at the summary-judgment stage. Parties relying on indemnity provisions should preserve scope-of-work proof, field records, and expert testing that can tie (or untie) a subcontractor to a defect.