dissenting.
[123] I do not agree that the district court's findings fail to support the promissory estoppel claim. The district court found that in 1988 and 1993, during his partnership with Mr. Ayres and before the partners entered into an agreement to incorporate the business, Mr. Baker made an express promise to procure insurance on his life naming the partnership as the beneficiary. Later, during discussions about incorporating the business, the partners agreed that their existing policies would be used to fund the corporation's buy/sell agreement. Evidence was presented showing that the policies predated incorporation, were in the partnership name or were being paid for by the partnership, and the partners agreed the business would be the beneficiary-all of this before the stock purchase agreement was executed. The stock purchase agreement, which included the agreement to transfer the policies from the partners and/or the partnership to the company, was made between the stockholders of the corporation-Mr. Baker, Mr. Ayres, Mrs. Baker and Mrs. Ayres. The agreement to procure individual life insurance policies with the partnership as the beneficiary was made between Mr. Ayres and Mr. Baker. I would hold that a promissory estoppel claim based upon a prior agreement between two partners comprising a partnership is cognizable despite a later agreement between the soon-to-be shareholders to incorporate the partnership. I do not agree that the case authorities cited by the majority preclude that outcome.
[T24] Sowerwine and Frost involved written agreements entered into between two parties, one of whom later claimed the written agreement omitted a provision of the parties' actual agreement. Under those circumstances, where the same parties were involved in both the written agreement and the allegedly omitted provision, we held a promissory estoppel claim was not cognizable because of the existence of the contract. In Parkhurst, another case involving two parties to an alleged agreement, we reiterated the rule that promissory estoppel does not apply if a contract exists. In that case, we concluded the party claiming that a contract existed failed to carry his burden of proving an oral contract sufficiently definite to avoid the statute of frauds. Having concluded no contract existed, we considered the promissory estoppel claim but found insufficient evidence to support the claim.
[T25] In contrast to those cases, the present case involved two agreements-the first between two partners in which they agreed to purchase insurance naming the partnership as beneficiary, and the second between four corporate stockholders in which they agreed the corporation would procure insurance the proceeds of which would be used to fund the buy/sell provision of the stock purchase agreement. I would hold that the existence of the 1998 stock purchase agreement does not extinguish a promissory estoppel claim based on the prior partnership agreement.
*1254[126] In Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293 (Wyo.1995), a ranch employee who was injured while performing his job elected not to undergo treatment after his employer told him the ranch's insurance would not cover him. Upon being advised later by his employer that there might be coverage after all, the employee contacted the Mountain West representative who told him to get the treatment, send in the bills and Mountain West would pay them. The employee did as he was told. Mountain West paid $5,000 but declined further payment. The employee brought claims against Mountain West based upon promissory estoppel and negligent misrepresentation theories. The district court rejected the promissory estoppel claim finding, as a matter of law, the theory would not apply to create coverage not found within the insurance contract. We agreed that estoppel would not operate to create additional insurance in an existing insurance contract. Id. at 1298. However, separate and apart from the insurance contract entered into between the ranch and Mountain West, we held that genuine issues of fact existed as to whether the insurance company representative's promises to the employee "resulted in the formation of an entirely new contract of insurance" under the theory of promissory estoppel. Id. We said, "[the employee] may collect upon Mountain West's promise to him to pay for his surgery and rehabilitation, provided he can make his case for that promise to a jury of his peers." Id.
[127] Applying this reasoning, it is clear the stock purchase agreement between the stockholders could not operate to require Mr. Baker to procure insurance on his life naming the company as beneficiary. However, notwithstanding the stock purchase agreement, I would hold that the district court's factual findings supported its conclusion that Mr. Baker's promise to Mr. Ayres resulted in an entirely separate agreement enforceable under the theory of promissory estoppel.
[128] I also disagree with the majority's conclusion that the district court erred in imposing a constructive trust. The majority's conclusion that the trial court was wrong hinges on the third element necessary for imposition of a constructive trust, i.e., unjust enrichment, which occurs when "a party receives something of value without payment, which was accepted and used so as to unjustly enrich the recipient of the goods or services." McNeill Family Trust v. Centura Bank, 2003 WY 2, ¶ 2, 60 P.3d 1277, 1287 (Wyo.2003). The majority concludes Mrs. Baker did not receive something of value "without payment" when she received the insurance proceeds because the evidence showed Mr. Baker paid the insurance premiums. In my view, Mrs. Baker received something of value without payment and was unjustly enriched when she received both the insurance proceeds, which were intended to fund the corporate buyout, and payment for the value of the Bakers' corporate shares.
BURKE, Justice, delivers the opinion of the Court; KITE, Justice, files a dissenting opinion.