While this Court has not previously declared that the right to access to the courts is a fundamental right, we have referred to Article 1, Section 8 as securing a right to access. White v. State, 784 P.2d 1313 (Wyo. 1989); Phillips v. ABC Builders, Inc., 611 P.2d 821 (Wyo. 1980), appeal after remand, 632 P.2d 925 (Wyo. 1981); Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380 (1949). We now hold that the right to access to the courts is a fundamental right pursuant to Article 1, Section 8.
Our constitutional guarantee of access to the court means just that and no more. Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380 (1949). While the constitution also guarantees that justice shall be "administered without sale, denial, or delay," there is no guarantee that an unhappy litigant will maintain a viable claim once he finds himself in court.
The provision is not a limitation on lawmakers who, in the proper exercise of the legislative power, may alter or abolish common law causes of action as long as that legislative action does not violate some other provision of our constitution. Mull v. Wienbarg, 66 Wyo. 410, 419-20, 212 P.2d 380, 382-83 (1949). The open courts provision was included in our constitution to insure equal administration of justice by the judiciary and did not intend application to the legislature nor to create a fundamental right to full legal redress.
" Tuttle v. Short, 42 Wyo. 1, 288 P. 524, 528-529, 70 A.L.R. 106; Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380, 381, 386-387. Our wrongful death act consists of §§ 1-1065 and 1-1066, W.S. 1957.
Contracts are written in light of existing law, including common law, and statutes ought not be applied retroactively so as to deprive contracting parties of their rights. Application of Hagood, 356 P.2d 135, 138 (Wyo. 1960); Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380, 389 (1949). This is consistent with the constitutional mandate that no law shall be made impairing the obligation of contracts.
The cause of action is not related to any cause of action held by the decedent at the time of his death. See also Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380 (1949); Coliseum Motor Co. v. Hester, 43 Wyo. 298, 3 P.2d 105 (1931); and Massion v. Mt. Sinai Congregation, 40 Wyo. 297, 276 P. 930 (1929). This well may be Lord Campbell's Act with which we are dealing.
(Emphasis added.) At common law, actions for personal injuries, including wrongful death, did not survive. Mull v. Wienbarg, 1949, 66 Wyo. 410, 212 P.2d 380; Coliseum Motor Co. v. Hester, 1931, 43 Wyo. 298, 3 P.2d 105; Tuttle v. Short, 1930, 42 Wyo. 1, 288 P. 524, 70 A.L.R. 106. This court has construed § 1-28 but did so in a wrongful death case where the plaintiff attempted to recover for pain, suffering, disability and anguish, in addition to the damages allowed by the wrongful death act, §§ 1-1065 and 1-1066, W.S. 1957. Parsons v. Roussalis, Wyo. 1971, 488 P.2d 1050. The court held that in a case of wrongful death, § 1-28 was not meant to allow recovery under both the survival statute and the wrongful death act. Particularly excepted from the opinion was the question of the right of the administrator to bring a separate action for medical expenses; that is partly the issue we now have.
" Accordingly, we need not here reiterate, discuss, or attempt to elucidate the rules regarding actions for wrongful death and survival of actions ably analyzed in Tuttle v. Short, 42 Wyo. 1, 288 P. 524, 70 A.L.R. 106; Coliseum Motor Co. v. Hester, 43 Wyo. 298, 3 P.2d 105; Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380. Defendants have posed two queries:
Section 8554, N.C.L. and section 9194, N.C.L. refer to causes of action surviving the death of the injured person but in neither of them is there any survival of an action against a wrongdoer after his death. If a statute merely gives a right of action against a wrongdoer, and, in specific words, does not make the action survive the death of the wrongdoer, there is no survival. 1 Am.Jur. 97. In the recent case of Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380 at 385, the Supreme Court of Wyoming said: "It is said in 25 C.J.S., Death, Section 42, page 1135, speaking of the statute here in question (Lord Campbell's Act) that: `In the absence of a statute expressly so providing, the right of action for death by wrongful act does not survive the death of the wrongdoer.