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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 35027

KURT J. DYPWICK, 

 

 Claimant-Appellant, 

 

v. 

 

SWIFT TRANSPORTATION CO., INC., 

Employer, and IDAHO DEPARTMENT OF 

LABOR, 

 

 Respondents. 

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Boise, May 2009 Term

2009 Opinion No. 70

Filed: May 29, 2009

Stephen W. Kenyon, Clerk

 

 Appeal from the Idaho Industrial Commission. 

The appeal of the Industrial Commission’s decision is dismissed.

Kurt J. Dypwick, Missoula, Montana, appellant.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.

_____________________

J. JONES, Justice

Kurt Dypwick appealed the Industrial Commission’s decision upholding the denial of his 

claim for unemployment insurance benefits, but died while the appeal was pending before this 

Court. We dismiss the appeal. 

I.

In July 2006, Kurt Dypwick began working as a truck driver for Swift Transportation 

Company (Swift). While employed by Swift, Dypwick was involved in at least two preventable 

accidents. After the second accident, Swift’s safety manager informed Dypwick that his 

employment with Swift would be terminated if he had a third preventable accident. 

Approximately six weeks after Dypwick received this warning, he was assigned to transport a 

trailer from Boise, Idaho to Salt Lake City, Utah. When Dypwick arrived with the trailer in Salt 

Lake City, there was visible damage to the exterior side of the trailer. Because the trailer left 
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Boise with no reported damage and arrived in Salt Lake City damaged, Swift concluded that 

Dypwick had been involved in a third preventable accident and, therefore, terminated his 

employment. 

After being discharged, Dypwick filed a claim for unemployment insurance benefits. 

Initially, the claim was reviewed by a Claims Examiner who denied the claim after determining

that Dypwick was discharged for employment-related misconduct and, thus, was ineligible for 

benefits. Dypwick appealed the Claims Examiner’s decision to an Appeals Examiner and then to 

the Industrial Commission, but both appeals were unsuccessful. 

On February 26, 2008, Dypwick filed an appeal with this Court challenging the 

Commission’s decision upholding the denial of his claim for benefits. His appeal was originally 

scheduled to be heard on January 16, 2009, but was suspended after the Court received notice 

that Dypwick had passed away on September 30, 2008. Upon receiving this information, the 

Court Clerk notified Dypwick’s mother that his appeal would be suspended for ninety days to

allow his estate to file a motion to substitute. On April 7, 2009, the ninety day period expired 

with no substitution having been made. Nonetheless, Dypwick’s appeal was reinstated and 

placed on the Court’s May calendar to be considered on the briefs. In the appeal, Dypwick 

argues the Commission erred in concluding that he was discharged for employment-related

misconduct. 

II.

On appeal, we are concerned with two issues: (1) whether we should consider the merits

of Dypwick’s appeal given his estate’s failure to file a notice of substitution; and (2), if so, 

whether the Commission’s conclusion that Dypwick was discharged for employment-related

misconduct was supported by substantial and competent evidence.

Under Idaho Rule of Appellate Procedure 7, when a party to an appeal dies, that party’s 

representative or successor in interest must file a notification of substitution of party. Idaho App. 

R. 7. The notice must be served on all parties to the appeal and, if not objected to within 

fourteen days of service, will become effective. Id. Rule 7 does not impose any consequences

for failing to file a notice of substitution. The Idaho Rules of Civil Procedure, however, indicate 

that, in the event of a party’s death, a failure to substitute may result in the dismissal of the 

action. Rule of Civil Procedure 25(a), which has been characterized as the counterpart of 

Appellate Rule 7, provides:
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If a party dies and the claim is not thereby extinguished, the court may order 

substitution of the proper parties. The motion for substitution may be made by the 

successors or representatives of the deceased party or by any party and together 

with the notice of hearing, shall be served on the parties as provided in Rule 5 and 

upon persons not parties in the manner provided in Rule 4 for the service of a 

summons. If substitution is not made within a reasonable time, the action may be 

dismissed as to the deceased party.

Idaho R. Civ. P. 25(a) (emphasis added); see also State v. Korsen, 141 Idaho 445, 447, 111 P.3d 

130, 132 (2005). The rule’s permissive language vests courts with the discretion to decide

whether to dismiss an action when there is a failure to substitute. 

Although the Rules of Civil Procedure would not have applied to Dypwick’s claim, since 

the proceedings were before the Industrial Commission, the Employment Security Law

contemplates the substitution of certain survivors in place of a deceased claimant in proceedings 

to collect unemployment benefits due upon his or her death. Idaho Code § 72-1370 provides:

Whenever a benefit claimant dies, having completed a compensable period prior 

to his death, benefits due the deceased claimant at the time of death shall be 

payable, without administration, to the surviving spouse, if any, or, if there be no 

surviving spouse, to the dependent child or children.

Rule 7 does not affirmatively require us to either dismiss or entertain an appeal under 

these circumstances, but there is no apparent reason to distinguish substitution at the trial court 

level from substitution at the appellate level. Thus, we conclude that this Court has discretion

under Rule 7 to either consider the merits of an appeal or dismiss the appeal in the event of a 

failure to substitute. 

Here, in exercising our discretion, we decline to consider the merits of Dypwick’s appeal. 

Two factors disfavor review on the merits. First, no survivor of Dypwick has filed a motion for 

substitution. On December 18, 2008, Dypwick’s mother, Patricia Coffelt, filed with the Court a 

document titled Ex-Parte Request to Continue Appeal, notifying the Court of Dypwick’s death 

and requesting that his appeal be considered and decided. Coffelt was thereafter advised that the 

Court would allow a motion for substitution to be filed within three months. No such motion has 

been filed nor has the Court been provided with any information regarding an intention to do so. 

Second, it is not clear that Dypwick’s claim survived his death, as the record fails to disclose that 

Dypwick left a surviving spouse or dependent child who would be eligible to receive any 
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benefits.1 A brief obituary furnished by his mother makes no mention of such a survivor. For 

these reasons, we decline to consider whether the Commission erred in upholding the denial of 

Dypwick’s claim for benefits. 

III.

Dypwick’s appeal of the Commission’s decision upholding the denial of his claim for 

unemployment insurance benefits is hereby dismissed. 

Chief Justice EISMANN, and Justices BURDICK, W. JONES and HORTON CONCUR.

 

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The Department of Labor rule pertaining to survival appears to impermissibly expand the category of beneficiaries 

entitled to receive a deceased claimant’s benefits. While Idaho Code § 72-1370 limits beneficiaries to a surviving 

spouse or, failing that, to a dependent child or children, the Department’s Rule 225 expands the class of beneficiaries 

to include the deceased claimant’s estate. IDAPA 09.01.30.225. Although we need not decide the matter for 

purposes of this appeal, it certainly appears as if the Department has gone beyond what the Legislature intended in 

this regard.