dissenting.
[T 20] I must respectfully dissent from the majority's decision that Wyo.Stat.Ann. § 1-39-118 of the Wyoming Governmental Claims Act bars Mrs. Rawlinson's claim against the Board of Public Utilities (BOPU). I believe the majority errs when it fails to apply the plain language of the governing statute; mistakenly equates the discovery of damage with the discovery of the act, error or omission which caused that damage; and ultimately concludes that summary judgment was appropriate.
[121] Wyo.Stat.Ann. § 1-89-118 (LEXIS 1999) provides that:
(a) No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:
1) Not reasonably discoverable within a two (2) year period; or
() The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence.
[« 22] The majority cites to our recent discussion in Waid v. State ex rel. Dep't of Transp., 996 P.2d 18, 25 (Wyo.2000), where we explained that "the time for filing a claim [under Wyo.Stat. § 1-89-113] is measured not from the date damage occurs, but from the date on which the 'act, error or omission' occurs, or when it is discovered by a claimant." In Waid, we held that the plaintiffs' claim was barred stating, "there was no new 'act, error or omission," or a fresh discovery of such that would cause the statutory time period to start anew." Id. (emphasis added).
[1283] I think the plaintiff correctly relies on Metzger v. Kalke, 709 P.2d 414 (Wyo.1985), for the proposition that discovery of the act, error or omission as contemplated by the statute means actual discovery. Wyo. Stat.Ann. § 1-3-107(a) (LEXIS 1999), the statute of limitations for medical malpractice actions, contains identical language to the relevant portion of Wyo.Stat.Ann. § 1-89-113 later adopted by the legislature.1 In Metzger we interpreted the statute's plain language and, after an extended, thoughtful discussion of the issue, determined that "[in view of the specific language of [the statute] and the rationale behind the discovery rule generally, ... a plaintiff discovers an 'alleged act, error or omission' within the meaning of [the statute] when he learns that his harm resulted from the wrongful conduct of the defendants." Id. 709 P.2d at 419. This court in Metzger pointed out that the applicable statute extends the limitation period based on the plaintiff's actual discovery of the alleged conduct. Id. at 420. The court went on to say: "We are not concerned with what appellants in this case may have suspected or what they should have known in December, 1981. The affidavits submitted on behalf of appellants establish that they learned of ap-pellees' alleged wrongdoing on July 15, 1982." Id.
*19[T24] According to the plain language of the statute, Mrs. Rawlinson can properly rely on the discovery provision of § 1-89-118(a) if she establishes that she failed to discover BOPU's alleged negligence within two years of the act, error or omission if either i) it was not reasonably discoverable within that period, or (ii) she did not discover it during that period despite her exercise of due diligence. The majority, however, applies neither the discovery provision nor the due diligence section of the statute.
[125] The record shows that Mrs. Raw-linson had a pre-purchase inspection of her home done in December of 1994, which disclosed the soil in the crawl space of her home was wet. After an incident in June of 1995 when water flooded the basement, Mrs. Raw-linson hired the first of two structural engineers to determine the cause of the water seepage. The first engineer issued a report on June 28, 1995, in which he determined that some of the water damage was caused by a downspout draining toward the house. He also reported that "ponding adds to the ground water next to the foundation and migrates into the residence." The report, read as a whole, indicates that the first structural engineer believed that improper downspouts as well as water shedding off the residence ponding with ground water was the source of the water seepage. Mrs. Rawlin-son testified in deposition that the summers of 1995, 1996, and 1997 were unusually wet, and she believed rain and/or groundwater was the source of the seepage in her home that led to standing water in her basement. Mrs. Rawlinson began repairs to her home to solve the water seepage problems that took place during the summer months. In July of 1997, a second structural engineer hired by Mrs. Rawlinson issued a report in which he indicates that rain and/or groundwater draining into the home is probably the source of the water seepage. In June of 1997, BOPU visited Mrs. Rawlinson's home for the first time purportedly to test new equipment. After being informed that the homeowner had been experiencing water problems for two years, BOPU conducted further tests on or near the residence twice more in July of 1997. On her part, Mrs. Rawlinson continued to make the recommended repairs to her home which would eliminate the water seepage in her basement.
[126] According to metereological data, the summer of 1998 was unusually dry, and Mrs. Rawlinson had ceased to water her lawn in an attempt to discover the source of her home's water seepage. While the structural engineer was in her basement, he remarked that the sump pump seemed to be working abnormally, cyeling gallons of water every 60 seconds even after extensive repairs to the foundation had been made. When the sump pump abruptly stopped, he remarked that was unusual and would appear as if it had been fed from a constant source of water that had simply dried up, like a leak in the city's water system. Mrs. Rawlinson later on that same day learned that the city had changed a hydrant near her home at approximately the same time. Thus, Mrs. Rawlinson's actual discovery of the alleged act, error or omission took place at the earliest, on that date: July 22, 1998. On July 29, 1998, she had both water and soil samples tested in an attempt to determine whether fluoride and chloride in the water could indicate its source as city water. She filed her written claim against BOPU on December 10, 1998. Based on the facts before me, I cannot determine as a matter of law that Mrs. Rawlinson did not exercise due diligence in an attempt to uncover the cause of her injury. Further, I do not believe that under the cireumstances Mrs. Rawlinson was unreasonable in initially believing that the source of the water seepage in her basement was rainwater or groundwater.
[1 27] I believe the majority's reasoning is erroneous because it mistakenly equates discovery of damage with discovery of the cause of damage. It is undisputed that Mrs. Raw-linson knew she had water seepage in her basement on June 28, 1995; however, that does not mean that she simultaneously discovered the act, error or omission which gives rise to her cause of action (BOPU's alleged failure to maintain its hydrant)2 *20The majority errs by improperly applying non-analogous cases to the facts before us. It is one thing for this court to hold, as we have, that discovery of water seepage in the basement is sufficient to concurrently alert a plaintiff to the fact that they have a potential cause of action against their builder, their seller, the city inspector, or the county planner;3 it is quite another to determine that, as a matter of law, discovery of water seepage in the basement is sufficient to concurrently alert a plaintiff to the fact that they have a potential cause of action against BOPU for failure to maintain its hydrant.
[128] Moreover, the majority opinion flouts the standard for reviewing this issue. This court has held that only if uncontrovert-ed facts exist which specify when a reasonable person should have been placed on inquiry notice can we resolve the question as a matter of law. Hiltz v, Robert W. Horn, P.C. 910 P.2d 566, 569 (Wyo.1996); Bredthauer v. Christian, Spring, Seilbach and Associates, 824 P.2d 560, 562 (Wyo.1992); Mills v. Garlow, 768 P.2d 554, 556 (Wyo.1989). Otherwise, "[olrdinarily, entering a summary judgment on the issue of when a statute of limitations commences to run would be inappropriate." Hiltz 910 P.2d at 569 (citing Palmer v. Borg-Warner Corp., 818 P.2d 632, 634 (Alaska 1990)).
[129] In addition, although not a suit brought under the Wyoming Governmental Claims Act, the majority's reasoning also departs from the rule we announced in Nowotny v. L. & B. Contract Industries, Inc., "onee [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim." 933 P.2d 452, 457 (Wyo.1997) (quoting Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 450 A.2d 681, 685 (1982) (emphasis in original)). In Nowotny, the appellant was injured when the allegedly defective restaurant bench seat he was sitting on collapsed. This court appropriately determined that the appellant knew of both his injury and its cause on that date and his failure to determine the identity of manufacturer of the bench seat within the four-year statute of limitations barred his claim. Mrs. Rawlinson's case could properly be analogized to that of the plaintiff in No-wotny if she had known the water seepage in her basement was caused by a negligently maintained fire hydrant yet failed to determine the identity of the party who exercised dominion over the hydrant until after the claims period had expired. However, when the majority in its opinion improperly labels Mrs. Rawlinson's lack of knowledge on June 28, 1995, as merely that of the identity of her potential tortfeasor rather than what it truly was-a lack of knowledge of the cause of her infury-it misconstrues our holding in Nowotny and works a serious injustice on both precedent and the claimant in this case contrary to the stated purpose of the Wyoming Governmental Claims Act: "to balance the respective equities between persons injured by governmental actions and the taxpayers of the state of Wyoming." 4 Thus, therein I cannot concur.
. Compare 1976 Wyo.Sess.Laws ch.18, § 1 to 1979 Wyo.Sess.Laws ch. 157, § 1.
. The statute is difficult to apply under the circumstances of this case because, while both the majority and I address the date of discovery of the act, error, or omission in question, the actual *20date of the act, error or omission has not been established. It appears indisputable that, if BOPU were negligent, its negligence must have occurred prior to the flooding of Mrs. Rawlin-son's basement in June of 1995.
. See Anderson v. Bauer, 681 P.2d 1316 (Wyo.1984); Barlage v. Key Bank, 892 P.2d 124 (Wyo.1995); Davis v. City of Casper, 710 P.2d 827 (Wyo.1985).
. Wyo.Stat.Ann. § 1-39-102(a)(LEXIS 1999).