1 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.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) 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. Dypwic k, Missoula, Montana, appellant

. Hon. Lawrence G. Wasden, Attorney General, Boise, for respond ent.

_____________________ 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 info rmed 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 Dy pwick arrived with the trailer in Salt
Lake City
, there was visible damage to the exterior side of the trailer

. Because the trailer left2

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 E xaminer who denied the claim after determining
th at Dypwick was discharged for employment

- related misconduct and, thus, was ineligible for
benefits. D ypwick appealed the Claims Examiner’s decision to an Appeals Examiner and then to the Industrial Commission, but both appeals were unsuccessful.
On Febr uary 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 no tice that Dypwick had passed away on September 30, 2008. Upon receiving this information, t he
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, t he 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) w hether 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 t he 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 success or 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 con sequence s
for failing to file a notice of substitution. T he Idaho Rules of Civil Procedure , however, indicate
that , in the event of a party’s death, a failure to substitute ma y result in the dismissal of the
action. Rule of Civil Procedure 25 (a) , which h as been characterized as the counterpart of Appellate Rule 7, provides:3

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 represen tatives 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 m ade 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 disc retion 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 E mployment 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.

R ule 7 does not affirmat ively 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 subs titution at the appellate level. Thus, we conclude that this Court has discr etion
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.

T wo factors disfavor review on the m erits. 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 E x

- Parte Request to Continue A ppeal, notifying the Court of Dypwick’s death and req uesting that his appeal be considered and decided. C offelt 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 reg arding 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 any4

benefits. 1 A brief obituary furnis hed 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 den ial of his claim for unemployment insurance benefits is hereby dismissed

.

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

1 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 inc lude 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.