GOLDEN, Justice.
[¶ 1] Christine Nodine (Mrs. Nodine), whose husband was killed by an avalanche on a ski run at Jackson Hole Mountain Resort (JHMR), appeals the district court's summary judgment order dismissing her
[¶ 2] Mrs. Nodine presents the following issues on appeal:
[¶ 3] On December 27, 2008, Mrs. Nodine's husband, David Nodine, was killed by an avalanche on a JHMR ski run. On July 16, 2009, a Texas probate court appointed Mrs. Nodine as the Independent Administrator of her deceased husband's estate. On September 17, 2009, Mrs. Nodine filed a wrong death action against JHMR in the United States District Court for the District of Wyoming.
[¶ 4] On May 18, 2010, while Mrs. Nodine's action was pending in federal court, this Court issued a decision holding that the personal representative for purposes of bringing a Wyoming wrongful death action must be appointed within the wrongful death action by the court with jurisdiction over that action. See In re Estate of Johnson, 2010 WY 63, ¶ 21, 231 P.3d 873, 881 (Wyo.2010). On October 5, 2010, Mrs. Nodine filed her Second Amended Complaint, which included her continuing allegation that she was the duly qualified and appointed personal representative of her husband's estate and that she was a proper wrongful death plaintiff under the Wyoming Wrongful Death Act. On October 14, 2010, JHMR filed its answer to the amended complaint and admitted those allegations.
[¶ 5] On November 24, 2010, after completion of discovery and the filing of summary judgment motions, the federal court granted JHMR's motion for summary judgment and dismissed Mrs. Nodine's wrongful death claim, without prejudice. The federal court found that the forum selection clause on a liability waiver signed by Mr. Nodine before his accident was binding and required that any action against JHMR be brought in state district court in Teton County, Wyoming.
[¶ 6] On December 22, 2010, five days before the two-year filing period expired, Mrs. Nodine filed her wrongful death action in state district court in Teton County. On April 29, 2011, JHMR filed a summary judgment motion seeking judgment both on the merits of Mrs. Nodine's claim and on the ground that Mrs. Nodine was not properly appointed as the personal representative of Mr. Nodine's estate for purposes of maintaining her state court action under the Wyoming Wrongful Death Act. On June 3, 2011, Mrs. Nodine requested that the district court appoint her personal representative of her husband's estate for purposes of maintaining her wrongful death action.
[¶ 7] On September 30, 2011, the district court entered its Order Granting Defendant's Motion for Summary Judgment. In dismissing Mrs. Nodine's action, the district court did not rule on the merits of Mrs. Nodine's
[¶ 8] On October 25, 2011, Mrs. Nodine timely filed a Notice of Appeal from the district court's order dismissing her wrongful death claim.
[¶ 9] Motions for summary judgment come before the trial court pursuant to Rule 56(c) of the Wyoming Rules of Civil Procedure, which provides that
Formisano v. Gaston, 2011 WY 8, ¶ 3, 246 P.3d 286, 288 (Wyo.2011). We review a grant of summary judgment as follows:
Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo.2011).
[¶ 10] The district court interpreted this Court's holding in Johnson to require that Mrs. Nodine's wrongful death action be dismissed. We start then with our holding in Johnson.
[¶ 11] Johnson was an appeal from a probate court order denying the petition of a decedent's wife to revoke the appointment of
Johnson, ¶ 15, 231 P.3d at 880 (emphasis added).
[¶ 12] After holding that the Wrongful Death Act does not require the personal representative to be the probate estate's administrator or executor, we explained that the appointment of a personal representative for purposes of prosecuting a wrongful death claim was a discretionary task to be completed within the wrongful death action itself. Johnson, ¶¶ 17, 21, 231 P.3d at 880-81. Our opinion in Johnson did not define the appointment of the personal representative as a jurisdictional prerequisite or otherwise discuss the task or its timing as a condition precedent to maintaining a wrongful death claim.
[¶ 13] That said, we need not address those questions of interpretation in the present appeal, because this Court directed that its holding in Johnson was to have prospective application only. Specifically, we stated:
Johnson, ¶ 14, 231 P.3d at 879-80 (footnote omitted).
[¶ 14] Whether to give an opinion prospective application only is a determination to be made by this Court. AT&T Commc'ns of the Mtn. States, Inc. v. State Bd. of Equalization, 768 P.2d 580, 583 (Wyo. 1989). We have followed the guidance offered by the United States Supreme Court in making that determination:
Adkins v. Sky Blue, Inc., 701 P.2d 549, 552 (Wyo.1985) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)).
[¶ 15] Our decision to apply Johnson prospectively is consistent with the Supreme Court's guidance on the operation of new law, and the circumstances of the present case further illustrate the wisdom in giving this type of change prospective operation only. First, Mrs. Nodine's cause of action accrued on December 27, 2008, and she filed her original wrongful death action on September 17, 2009, over seven months before this Court decided Johnson. When Mrs. Nodine's action accrued, and when she filed her action, the law was clear that the personal representative for purposes of bringing a Wyoming wrongful death action not only could be but was required to be the personal representative appointed by the probate court. See Bircher v. Foster, 378 P.2d 901, 903 (Wyo.1963), overruled by Estate of Johnson, 2010 WY 63, 231 P.3d 873 (Wyo.2010). Moreover, the law allowed that personal representative to be appointed by a foreign probate court. Ashley v. Read Constr. Co., 195 F.Supp. 727, 728-29 (D.Wyo.1961). Our holding in Johnson is a departure from this long-established precedent, precedent on which Mrs. Nodine had a solid basis to rely in filing her wrongful death action.
[¶ 16] Second, there is little cause for concern that allowing only prospective application of Johnson will impair operation of the law governing wrongful death actions. A wrongful death action must be brought within two years of the decedent's date of death. Wyo. Stat. Ann. § 1-38-102(d) (LexisNexis 2011). We do not, therefore, anticipate an extended time during which wrongful death actions will be brought outside the procedure set forth in Johnson.
[¶ 17] Last, we look to the inequity that would result in applying Johnson retroactively. Our concern in this type of case is that the two-year limitations period on a wrongful death claim leaves little room for imposing new procedural requirements to an already accrued action. The present case illustrates the substantial injustice such an imposition can create. The limitations period for Mrs. Nodine's wrongful death action began running nearly a year and a half before this Court decided Johnson, and she filed her original action, under pre-Johnson law, over seven months before our decision in Johnson. When the federal court dismissed Mrs. Nodine's claim without prejudice, she had only a little over one month remaining to file a claim in state court. Imposing a new procedural requirement, and elevating that requirement to the level of a condition precedent, worked a substantial injustice that our prospective application of Johnson was intended to guard against.
[¶ 18] We are particularly troubled by the result in this case, because during the fourteen months Mrs. Nodine's action was pending in federal court, even after she filed a second amended complaint five months after our decision in Johnson, JHMR never objected to Mrs. Nodine's capacity to bring the wrongful death action. Instead, JHMR, which can claim no harm or prejudice as a result of Mrs. Nodine's probate appointment as the personal representative, waited until
[¶ 19] The dismissal of an already accrued wrongful death action was not the harsh result this Court intended with its decision in Johnson. The decision was intended to have prospective operation only, and we thus reverse the dismissal of Mrs. Nodine's wrongful death action.
[¶ 20] This Court's decision in Johnson does not apply retroactively to strip Mrs. Nodine of her status as a properly appointed personal representative in her wrongful death action against JHMR. We therefore reverse the district court order dismissing that action.