Utah Supreme Court Considers What Constitutes a "Product" for Determining if a Case is Subject to the Product Liability Two Year Statute of Limitations

 

Utah Local Government Trust v. Wheeler Machinery Co., 2008 UT 84.

            In this case, the Utah Supreme Court considered what constitutes a “product” for determining if a case is subject to the product liability two year statute of limitations and when the statute of limitations for product liability cases begins. 

            In this case, the city of Hurricane bought two diesel generators from Wheeler Machinery. Due to improper installation of rain caps, a fire occurred that caused extensive damage to the city’s building and equipment. Wheeler Machinery claimed that the case was a product liability case and that the two year statute of limitations applied. 

            The court held that the “appropriate test for determining whether [a] claim sounded in product liability is (1) whether the transaction primarily concerned a product and (2) whether the product was defective when it was sold.”

            Under the first question of whether the transaction primarily concerned a product, the court recognized that in some circumstances, it is clear that the case arises from a defective product, such as a toaster with faulty wiring that causes a fire. In other cases, it is unclear whether the case arises from the product or from the service related to installing the product, for example if there was a negligent installation of furnace. These cases are a mix of product and service. To determine whether these hybrid cases are subject to the two year product liability statute of limitation, the court adopted the “predominant purpose test.” Under this test, a court is required to “review the factual circumstances surrounding the negotiation, formation and contemplated performance of the contract to determine whether the contract is predominantly or primarily a contract for the sale of goods.”  If it is, then it is a product liability case.

            Under the second question of whether the product was defective when it was sold, the court determined that a product is sold with “the passing title from the seller to the buyer for a price.” The title passes “to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods.” 

            The court determined that the record was unclear regarding these questions as to the diesel generators and remanded the matter to the trial court.

Summary provided by James C. Thompson

 

Functional Capacity Evaluations

Attorneys at Strong & Hanni are often faced with a claimant who is alleging that a personal injury has impacted his or her ability to work and engage in daily activities. In this situation, a standardized objective evaluation of the claimant’s ability to perform tasks related to the physical demands of their job and daily living is helpful. When such an evaluation is needed, we often turn to Dell C. Felix for a functional capacity evaluation.  The following is a short synopsis by Mr. Felix of the program components, features and benefits of a functional capacity evaluation.

 

Returning to activities like work, sports, hobbies, and many activities of daily living can be a challenge following an accident, surgery, or an extended illness.  A tool to measure what level of function an individual can sarely participate in is a Funcational Capacity Evaluation (FCE).  This is an evaluation usually performed by a trained Physical or Occupational Therapist who conducts the assessment that objectively identifies and measures functional strength, endurance, manual dexterity, and positional tolerances.

A typical FCE consists of the following:

  • Intake Interview - health history; work experience; pain levels; current perceived funtonal levels
  • Physical Examination - blood pressure; oxygen saturation level; heart rate; active range of motion; circumferential or volumetric measurements; brief neurologic assessment; non-organic testing (symptom magnification)
  • Maximum Voluntary Efffort Testing - formal grip strength testing; pinch strength testing; isometric push/pull testing; isometric lifting testing; manual torque strenght testing
  • Lifting/Carrying/Push-Pull Strength - single handed lifts from floor to overhead; safe occasional (maximal) box lifts; carrying; push and pull car;, frequent testing of lifting and carrying
  • Positional Tolerance - sitting; standing; walking; climbing (stairs, ladder); crawling, stooping, kneeling, etc; balance
  • Manual Dexterity Testing - typing; fine finger dexterity; whole body reaching; tool use
  • Work Specific Tasks - BTE work simulator; dolley, push/pull cart, suitcases, etc; specific work tasks
  • Repeated Consistent Efforts - 50 ft. speed walk; repetitive reach; grip/pinch tests; range of motion (observed vs. measured)

Benefits of an FCE:

  • Determine category of work based on U.S. Dept. of Labor
    • Sedentary – Lift up to 10 lb. occasionally
    • Light – Lift/carry up to 20 lb. occasionally and 10 lb. frequently
    • Medium – Lift/carry up to 50 lb. occasionally and 20 lb. frequently
    • Heavy – Lift/carry up to 100 lb. occasionally and 50 lb. frequently
    • Very Heavy – Lift/carry >100 lb. occasionally and > 50 lb. frequently
  • Identify current functional ability and activity tolerance
  • Match functional testing with job requirements for safe return to work
  • Document comparative strengths between injured vs. non-injured extremities
  • Identify consistent and credible behaviors
  • Validate consistency of effort

Testing of an individual’s tolerance of functional activities through a Functional Capacity Evaluation performed by a trained therapist can be a safe and effective way to document credible efforts, abilities, and functional strengths of a person who has gone through the process of an injury or disease.   This evaluation will also help in gaining a better understanding why some people have limitations in returning to full activity.   FCEs also help physicians, employers, attorneys, and the injured individual themselves understand what activities they are able to safely participate in and what they can tolerate without the guessing.

FUNCTIONAL ASSESSMENT REHAB & Physical Therapy
4031 So. Main Street
Salt Lake City, UT 84107
(801) 263-2063 office, (801) 263-3062

 

Introduction paragraph provided by Jeremy G. Knight and Article provided by Dell C. Felix

 

Legislative Update

 

The Utah Legislature is back in session. Strong & Hanni continues to provide service and leadership to its clients and the local defense bar through its lobbying efforts. There are several pieces of legislation that Strong & Hanni is tracking and working on for their clients.

HB 294 Survival Action Statute Amendments

This plaintiff’s bar legislation seeks to undue current Utah survival action law which prohibits the recovery of pain and suffering damages in cases where an injured party subsequently dies from unrelated causes. Under the proposed legislation, general damages would be awardable to an injured person’s heirs for pain and suffering even after the person dies from causes unrelated to the wrongdoer’s acts. The text of the proposed legislation may be found at http://le.utah.gov/~2009/bills/hbillint/hb0294.htm.

HB 192 Personal Injury Judgment Interest

This legislation drafted by Strong & Hanni on behalf of the Utah Defense Lawyers Association and State Farm Insurance seeks to change current law on the awarding of prejudgment interest in personal injury actions. Current law provides for 10% per annum prejudgment interest on all economic losses. The statute, however, makes all interest computations retroactive to the date of the accident regardless of the date of the medical expense or other economic loss. This results in a significant windfall to plaintiffs and their contingent fee lawyers.

The proposed legislation effectively would clarify that interest under the statute is simple interest, rather than compound interest, and should be computed from the date of the actual expense or loss. The text of the proposed legislation may be found at http://le.utah.gov/~2009/bills/hbillint/hb0192.htm.

 

Summary provided by Stephen J. Trayner

 

Utah Appellate Update

Moss v. Parr Waddoups Brown Gee & Loveless, 2008 UT App. 405: Utah Court of Appeals Upholds Enforceability of Mediation Confidentiality Agreement:

A law firm represented Iomed, Inc. in a lawsuit against former employee Yanaki claiming misappropriation of proprietary information and violation of a noncompetition agreement. During that lawsuit, the law firm obtained a court order permitting seizure of electronic records from Yanaki. Yanaki and his wife, Moss, later filed a federal court lawsuit against the law firm alleging violation of their civil rights. The parties to the first lawsuit attended a mediation during which a confidentiality agreement was signed. That agreement provided that all statements made during the mediation were privileged settlement communications which could not be disclosed for any purpose in any proceeding. 

Nearly two years later, the parties to the Iomed lawsuit executed a settlement agreement, by which time the civil rights lawsuit had been dismissed by federal court. Several months later, Yanaki and Moss filed suit in state court claiming that the law firm and others had breached an oral agreement made during the mediation to pay a large sum of money to settle the civil rights case.

The law firm moved for partial summary judgment arguing the Yanaki/Moss claims were barred by the confidentiality agreement and related privileges as any testimony regarding any oral agreement made during the mediation would be inadmissible under the terms of the agreement. Yanaki and Moss opposed the motion by disclosing communications made during the mediation and by offering an affidavit from the mediator. The law firm moved to strike those responses as violating the confidentiality agreement and as hearsay. The trial court denied both of the law firm’s motions indicating that testimony regarding agreements in the mediation were admissible under the circumstances.

The Utah Court of Appeals initially held that the confidentiality agreement was not ambiguous and was enforceable. The court noted that, while the confidentiality agreement was not exhaustive, it was clear that the parties intended that any discussions during the mediation were confidential and could not be used at any subsequent proceeding, even a proceeding regarding occurrences during the mediation itself. The court also ruled in favor of the law firm on the hearsay issue.

 

Asael Farr & Sons Co. v. Truck Insurance Exchange, 2008 UT App. 315: Utah Court of Appeals Explains Duties of Procuring Insurance Agent: 

This case involves a dispute over insurance coverage for ice cream inventory that spoiled due to an ammonia release caused by an equipment breakdown at Asael Farr & Sons Company’s (“Farr”) cold storage facility. Prior to the incident, Farr was informed that its previous commercial policy, which included property and liability coverage, would expire on May 13, 2003 and would not be renewed. As such, Dexter Farr, Farr’s general manager, asked insurance agent Andrew Reed to obtain a replacement policy on the commercial coverage. Reed ultimately employed the services of several other agents to assist in finding replacement coverage. A couple weeks after the previous policy had expired, a replacement policy was finally in place through American States Insurance Company and Safeco Insurance Company (“American States/Safeco”). That policy included $25,000 in spoilage coverage, the same amount of spoilage coverage provided under the previous policy. Shortly thereafter the ammonia leak took place, resulting in losses alleged at more than $1.5 million. 

Farr filed suit against the various agents and insurance companies which had been involved in the process of obtain replacement coverage. Farr’s claims were dismissed on summary judgment, and Farr appealed. Farr’s primary argument was that Reed breached his contractual obligations to Farr by failing to procure adequate spoilage coverage under the American States/Safeco policy. The court of appeals disagreed, noting that Mr. Farr had requested that the same limits that existed under the previous policy be provided under the replacement policy. Therefore, by obtaining the same $25,000 spoilage limit set forth under the previous policy, Farr’s reasonable expectations were met and Reed had performed exactly as requested by Farr. As such, there was no breach.

Farr also argued that Reed was negligent in failing to investigate and determine the full nature and extent of Farr’s risks and failing to ensure that coverage was made available to cover those risks. In analyzing this negligence claim, the court noted that Farr must first establish that Reed owed it a duty. The court noted that although Utah law recognizes a duty to procure insurance in some instances, such a duty does not necessarily extend so far as to require an agent to “secure a policy that adequately covers all of the insured’s risks.” Farr had not asked Reed to familiarize himself with its business or to ensure that its inventory was adequately covered. Rather, Mr. Farr chose to make the coverage decisions himself, based on his knowledge of the business operations. Therefore, the court held that under the facts of the case, Reed had no duty to analyze Farr’s needs or to procure insurance for more than Farr had requested. Finally, the court dismissed Farr’s claims for bad faith, finding that because Reed had done precisely what Farr had asked him to do, he could not have breached the implied covenant of good faith and fair dealing. 

  

Mellor v. Wasatch Crest Mut. Ins. Co., 2009 UT 5 (Utah 2009): Utah Supreme Court Applies Ambiguity Standards to ERISA Plan:

Mr. Williams had enrolled in an employee benefits plan through his employer which provided benefits to his son Hayden. When Mr. Williams left his employment, he continued health coverage for his family through COBRA. Hayden was permanently injured in a near drowning. His family sought coverage under the ERISA policies issued by the defendants. Given the amount of Hayden’s medical bills, the family also applied for coverage through Medicaid. The ERISA plan paid some of Hayden’s medical bills, but ultimately stopped paying benefits claiming that it had no obligation to continue paying after Medicaid coverage began.

In the trial court, the defendants argued that, under the terms of the policy, the insurers had no obligation to continue to pay benefits after Hayden obtained Medicaid coverage. Specifically, the insurers argued two exclusions, 4 and 17, precluded coverage where they excluded benefits for “4. Expenses covered by programs created by the laws of the United States, any state, or any political subdivision of a state” and for “17. Services, supplies, or treatment for which Benefits are provided under Medicare or any other government program, except Medicaid.” Despite the “except Medicaid” language, the trial court agreed and found there was no additional coverage available to Hayden after the Medicaid coverage began.

On appeal, the Utah Supreme Court analyzed the plaintiff’s argument that the two exclusions were ambiguous. Specifically, the plaintiff argued that the “except Medicaid” language in exclusion 17 was inconsistent with the language of exclusion 4 thereby creating an ambiguity that should result in coverage for the insured. The Utah Supreme Court discussed recent case law outlining the standards and methods of interpreting insurance contracts and analyzing whether ambiguities exist. The Court stated that “the test for clarity in an insurance contract is as follows: would the meaning be plain to a person of ordinary intelligence and understanding, viewing the matter fairly and reasonably, in accordance with the usual and natural meaning of the words, and in the light of existing circumstances, including the purpose of the policy?”

Applying this standard, the court found that the two exclusions were ambiguous since the “except Medicaid” language would leave a reader with the impression that Medicaid coverage was not actually excluded. The court went on to hold that, under ERISA, a Utah employee benefits plan may not exclude coverage for benefits provided by Medicaid as this would simply shift the benefits which should be provided by the plan to Medicaid. The Court concluded that “[a]t best, exclusion 4 and exclusion 17 create an ambiguity in the [policy].  At worst, they evidence an attempt to comply with the nominal requirements of the law while at the same time circumventing the actual requirement of providing coverage regardless of whether a beneficiary is also covered by Medicaid.  Under either scenario, we interpret the [policy] in favor of coverage.”

 

Martin v. Am. Family Ins. Co., 2009 UT App 20: Utah Court of Appeals Rules Assigned Claims May Not Be Prosecuted Pro Se:

The plaintiff’s sister originally had a claim against her insurance company for first party benefits. The plaintiff’s sister later assigned that claim to the plaintiff who filed a pro se lawsuit against American Family. The lawsuit was ultimately dismissed without prejudice and the plaintiff appealed.

On appeal, American Family moved for summary disposition claiming that, even though the plaintiff’s sister had assigned the claim to Mr. Martin, he could not act pro se on such a claim. The Utah Court of Appeals agreed stating that “while a person may represent herself pro se in actions in which that person is a party in her own right, she may not represent herself if she has obtained the claim through an assignment.” The court held that, under U.C.A. Section 78A-9-103, a plaintiff may only represent his own interests in a cause to which ie is a party in his own right and not as an assignee.

 

 

Summaries provided by Andrew D. Wright and Andrew B. McDaniel

 

Recent Courtroom Victories

Strong & Hanni has long been recognized as one of the top litigation firms in the State of Utah.  Here are just a few examples of recent courtroom victories by Strong & Hanni attorneys:
 

  1. Dismissal of Wrongful Termination Case Affirmed on Appeal

Kristin VanOrman and Jeremy Knight obtained a summary judgment on behalf of their client, Davis County, in a case filed by former police officer who claimed he was wrongfully terminated by the County. The trial court’s ruling was affirmed by the 10th Circuit Court of Appeals which ruled that the officer had not been deprived of his procedural or substantive due process rights, and had not been constructively discharged. 

 

  1. Summary Judgement Granted In Favor of Property Manager in Construction Defect Case

Robert Janicki and Michael Ford obtained summary judgment in favor of their client, a property manager, in a construction defect case. The case arose out of a flooding incident that occurred at a warehouse as a result of the failure of a sprinkler pipe that was part of the fire suppression system. The insurance company for the warehouse tenant sued the property manager and the fire sprinkler inspection company, alleging negligence by both. Strong & Hanni filed a motion for summary judgment on behalf of its client, arguing that the property manager owed no duty of care to a tenant to discover a latent defect in the property. The trial court agreed and granted the motion for summary judgment.

 

  1. Summary Judgement Granted to Olive Distributor in Tuan Sandwich Case

Steve Trayner and Scott Jacobson obtained summary judgment in a food defect claim involving allegations that the plaintiff broke several teeth when he bit into what was alleged to be an olive pit in a tuna sandwich purchased from a sandwich shop. Strong & Hanni’s client was the olive distributor that sold the olives to the sandwich shop. The food expert retained to test the alleged olive pit fragments determined that the objects were actually pebbles covered with asphalt. The trial court granted summary judgment in favor of the olive distributor after plaintiff was unable to rebut the food expert’s findings, and unable to produce any evidence to suggest that the pebbles may have been packaged with the olives. Plaintiff was allowed to proceed with his claims against the sandwich shop.

 

  1. Summary Judgment Granted in two Medical Malpractice Cases

Cathy Larson and Suzette Goucher obtained summary judgment in favor of their client, the defendant doctor in a medical malpractice claim. The case involved claims filed on behalf of a decedent who had gone to the emergency room complaining of chest pain. After several tests, including a CT angiogram, the decedent was discharged with instructions to return for a follow up visit. The decedent died several days later as a result of an ascending aortic dissection. Plaintiff alleged that the doctor was negligent in his treatment of the decedent and failure to diagnose the condition. Strong & Hanni moved for summary judgment on the basis that plaintiff’s sole medical expert failed to present evidence establishing the standard of care which the doctor was required to meet. The trial court agreed that plaintiff had failed to meet the burden of introducing expert medical testimony to establish the applicable standard of care, and therefore, dismissed the claim on summary judgment.  

     

Scott Williams, Suzette Goucher, and Jennifer Carrizal obtained summary judgment in favor of their clients, the defendants in a medical practice claim. The case involved a claim that defendants were negligent with regards to the techniques used to obtain radiology images of plaintiff’s back, and that plaintiff was injured during the course of obtaining the images. After several different expert designation deadlines passed without plaintiff designating any medical experts, Strong & Hanni moved for summary judgment, arguing that plaintiff had failed to meet her burden of presenting expert medical testimony to establish both the standard of care and causation. The trial court agreed that Utah law requires expert medical testimony in medical malpractice cases to establish the standard of care and causation, and that plaintiff had failed to present a prima facie case of medical negligence by failing to designate a medical expert on either of these issues. Therefore summary judgment was granted, and plaintiff’s claims dismissed.    

               

  1. Dismissal of Employment Discrimination and Retaliation Claim Affirmed

Stan Fitts and Aaron Jacobs successfully defended McDonalds and CES, Inc. in a recent employment discrimination and retaliation case before the Utah Anti-Discrimination Division. The plaintiff asserted a variety of discrimination claims on the basis of age, gender, national origin and ethnic background arising out of two separate adverse employment determinations. The plaintiff also asserted retaliation claims on the basis that the second adverse employment decision followed the plaintiff’s initial charge with the Utah Labor Commission. The ALJ granted defendants’ motion for summary judgment dismissing all claims against McDonalds and CES, Inc. The ALJ’s decision was affirmed on appeal to the Utah Labor Commission.

 

  1. Claims Against California Insurance Broker Dismissed for Lack of Persona Jurisdiction

Steve Trayner and Scott Jacobson prevailed on a motion to dismiss on behalf of their client, a California insurance broker. The case involved a suit filed by a Utah based financing company against a California insurance broker and a Louisiana based insurance company seeking to recover property damages sustained to a trailer which had been leased to a non-Utah resident. Strong & Hanni moved for dismissal of the claims against its client for lack of personal jurisdiction, arguing that the California insurance broker had not conducted any business in Utah and had done nothing to subject itself to the jurisdiction of the Utah state court. The trial court agreed and dismissed the claims against the insurance broker for lack of jurisdiction.

 

  1. Summary Judgment Granted in Favor of Employee Driver

Steve Trayner and Arek Butler recently obtained summary judgment dismissing one of their clients as a defendant in a personal injury case. Strong & Hanni’s client, an employee of a Salt Lake City business, was involved in an auto accident while commuting home from work. Plaintiff incurred over $100,000 in medical expenses allegedly due to the accident. Plaintiff filed suit against the business claiming the employee was acting in the scope and course of his employment at the time of the accident. However, plaintiff failed to name the employee as a party to the suit in his original complaint, but filed an amended complaint adding the employee as a party eight days after the running of the statute of limitations on the cause of action. Plaintiff argued that the amended complaint related back to the date of the original complaint pursuant to Rule 15 of the Utah Rules of Civil Procedure. Strong & Hanni successfully argued that for the amended complaint to relate back, the employee must have an “identity of interest” with the employer, but because the employee and the employer would have different defenses at trial they could not have a legal “identity of interest.”   The trial court agreed in granting summary judgment and dismissing all claims against Strong & Hanni’s client.

Voir Dire during Jury Selection

           In recent months, attorneys at Strong & Hanni have completed a number of jury trials. In those trials, it became apparent that many plaintiffs’ attorneys in Utah are requesting that trial courts ask jury panels voir dire on the issues of tort-reform bias and negative reports of personal injury cases generally. A careful review of Utah case law on this issue, including a recent case handed down by the Utah Court of Appeals earlier this year, shows that Utah appellate courts have taken the view that voir dire regarding tort-reform bias and negative reports of personal injury cases generally is absolutely necessary when requested by a plaintiff. It is clear from these cases that the trial court does not have the typical amount of ‘broad discretion’ given to trial court judges on voir dire when determining whether such questions should be posed. These cases further establish the right of a plaintiff to voir dire that allows a plaintiff to discover biases or prejudice in prospective jurors, which appellate court’s have concluded allows a plaintiff the right to the informed and intelligent exercise of peremptory challenges in the jury selection process.

            The Utah Supreme Court has instructed “trial judges to take care to adequately and completely probe juries on all possible issues of bias.” State v. James, 819 P.2d 781, 798 (Utah 1991). The purpose of this probing is to facilitate “both the detection of actual bias and the collection of data to permit and form the exercise of the peremptory challenge.”State v. Taylor, 664 P.2d 439, 447 (Utah 1983) (Citations omitted). “All that is necessary for a voir dire question to be appropriate is that it allow [a party] to exercise his peremptory challenges more intelligently.” State v. Worthen, 765 P.2d 839, 845 (Utah 1988).

            In Barrett v. Peterson, 868 P.2d 91, 101 (Utah App. 1993), the Utah Court of Appeals reviewed a case in which the trial court rejected the plaintiff’s request of voir dire which was designed to discover prospective jurors’ exposure to tort-reform issues and negative reports of medical negligence cases. The Utah Court of Appeals reversed the judgment of the trial court stating:

[T]he plaintiff is entitled during voir dire to elicit information from prospective jurors as to whether they have read or heard information generally on medical negligence or tort-reform, and to follow up with appropriate questions if affirmative responses are received.

The trial court’s failure to ask prospective jurors threshold questions sufficient to elicit information on jurors’ possible exposure to tort-reform and medical negligence information prevented appellant from detecting possible bias and from intelligently exercising his peremptory challenges. The trial court’s limitation of voir dire questioning substantially impaired appellant’s right to the informed exercise of his peremptory challenges and therefore constitutes reversible error. The judgment in favor of appellee is reversed, and the case is remanded for a new trial.

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Utah Appellate Update

Yirak v. Dan’s Super Markets et al., 188 P.3d 487 (Utah Ct. App. 2008): UTAH COURT OF APPEALS UPHOLDS PASSIVE RETAILER DOCTRINE:

 

Products liability – Passive retailer exception - The plaintiff filed suit after having sustained injuries from eating glass in a prepackaged salad purchased from the defendant supermarket. The defendant moved for, and was granted, summary judgment under the passive retailer exception to strict liability under Utah’s Product Liability Act, Utah Code Ann. §§ 78-15-1 to -7 (2002). The plaintiff argued that the district court erred in granting the defendant supermarket summary judgment because the glass that caused her injury “could have entered into the bag while in” the defendant supermarket’s control. 

The Utah Court of Appeals rejected the plaintiff’s argument, finding that the plaintiff had failed to identify any contested material facts or legal flaws in the district court’s application of the passive retailer exception. Significant to the court’s decision was the fact that the plaintiff had put forth no evidence that the defendant supermarket opened the prepackaged salad while it was in its possession, that the bag was open or had any holes in it when it was sold to her, that the defendant supermarket knew there was glass in the salad, or that any other customer found glass in salad purchased from the defendant before or after her purchase.   

Thus, the court found the defendant supermarket had carried its burden under the passive retailer exception and affirmed summary judgment in its favor.

Peck v. State, 2008 UT 39 UTAH COURT OF APPEALS INTERPRETS INCARCERATION EXCEPTION TO WAIVER OF GOVERNMENTAL IMMUNITY:

 

Governmental immunity – Negligence - The plaintiff was arrested for drunk driving, placed in handcuffs, and asked to stand in front of a police cruiser while a space was cleared for him in the back seat. The plaintiff stood in front of the cruiser, but refused to comply with the troopers’ repeated requests that he turn and face the vehicle. In response, one of the troopers attempted to physically restrain the plaintiff by forcing him to the ground. The trooper slipped on the wet parking lot, allowing the plaintiff to fall on his face with his hands cuffed behind him. 

The plaintiff filed suit against the State for personal injuries caused by the negligence of the trooper in allowing him to fall on his face. In response, the State filed a motion to dismiss based on governmental immunity, but that motion was denied.

On appeal, the Utah Court of Appeals found that the district court had misinterpreted Utah’s incarceration exception to the waiver of immunity, Utah Code Ann. § 63-30d-301(5)(j), which provides immunity for claims arising out of, in connection with, or resulting from a person’s incarceration in any state prison, county or city jail, or other place of legal confinement.  The court found that the plaintiff’s injury arose out of his incarceration in a “place of legal confinement,” and accordingly, was covered by the plain language of the exception. Accordingly, the court reversed the district court’s ruling and remanded the case.  

Jex v. JRA, 2008 UT 67 UTAH SUPREME COURT ANALYZES NOTICE ISSUES IN PREMISES LIABILITY CASE:

            Jex was a customer at a deli owned by the defendant. One morning after a snow storm, the deli owner arrived early and removed the snow from the front of the store. Jex was the first customer. After entering the store, Jex slipped on a small puddle that had formed on the wood floor. Jex was injured and sued the store owner. 

            Jex asserted two theories of liability. She claimed that the dangerous condition was either of a permanent nature or of a temporary nature. First, she claimed that the deli’s wood floor that was slippery-when-wet was a permanent condition and was an inherently dangerous mode of operation. The Utah Supreme Court found that the construction and maintenance of a slippery-when-wet floor surface does not of itself constitute negligence. The court distinguished previous cases where liability was found because in these previous cases the store owners had taken additional actions that made the floor dangerous. The court dismissed this claim.

            Jex also argued the condition was of a temporary nature. The court divided its analysis of this claim. First, the court analyzed if the puddle was made by Jex herself or by a third party. If so, the court found that there could be no liability because the deli did not have notice and opportunity to remedy the condition prior to the incident.

            However, the court found that if the owner or store employee created the condition, then the deli could be found liability. The court recognized that it had not before analyzed the notice requirements for a temporary dangerous condition created by the store owner. The court found that, as in cases involving permanent dangerous conditions, a plaintiff is not required to prove that the owner had notice of the temporary condition when the owner created the condition. 

            The case was remanded to the trial court for the jury to determine who created the puddle.

Downing v. Hyland Pharmacy, 2008 UT 65 UTAH SUPREME COURT CONSIDERS LEARNED INTERMEDIARY DOCTRINE AS APPLIED TO PHARMACISTS:

            In this case, Downing sued his pharmacy for filling prescriptions of fen-phen after the drug was withdrawn from the market by the FDA. The pharmacy was granted summary judgment by the trial under the Schaerrer decision which adopted the learned intermediary rule. This rule protects pharmacists from liability if they fill a prescription as directed by the manufacturer or physician. 

            The Utah Supreme Court found that the Schaerrer decision concerned a products liability claim. The court distinguished the Schaerrer claim from the negligence claim asserted by Downing. The court found that the learned intermediary rule does not necessarily bar a claim for negligence and that pharmacists have a duty of reasonable care. The court remanded the case to determine if the pharmacists acted reasonably.

Summaries provided by Andrew D. Wright

Utah Legislative Updates

 “Reforming Utah’s Pre-judgment Interest Statute”

Strong & Hanni is currently working with one of its clients, State Farm Insurance, to bring about a greater degree of fairness in personal injury litigation in the State of Utah. Strong & Hanni lawyers have long felt that the current pre-judgment interest statute works an unfair burden on its clients and their insurers. The current statute requires pre-judgment interest to be computed at 10% per annum from the date of loss rather than the date on which a particular medical expense or other special damage expense is incurred. 

            The unfairness of this rule is illustrated by recent cases handled by the firm. In one case, the plaintiff’s attorneys waited to bring suit until the eve of the four year bodily injury statute of limitations and then proceeded to have their case dismissed twice for failure to properly serve the defendant. Strong & Hanni’s client was finally properly served more than eight years after her the accident. As a result the more than $100,000 in medical expenses had become nearly $200,000 simply due to the workings of the statute and plaintiff’s counsel’s inexplicable inability to properly serve the defendant who had resided at the same address for more than two decades.

            In another case, there was a delay of nearly six years before the case was set for trial. Six months before trial before trial, the plaintiff underwent a surgery at a cost in excess of $40,000. Under Utah’s current statute, the plaintiff was entitled to six year’s worth of interest (more than $24,000) on the surgical and hospital expenses, even though the expenses was incurred less than six months before trial.

            The proposed redline revisions to the statute are set forth below:

Utah Code Ann. § 78B-5-824 (2008)

§ 78B-5-824. Personal injury judgments – Interest authorized

(1)    In all actions brought to recover damages for personal injuries sustained by any person, caused resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by the negligence or willful intent of that another person or entity, corporation, association, or partnership, and whether the injury was fatal or otherwise, the plaintiff in the complaint may claim interest on special damages actually incurred. from the date of the occurrence of the act giving rise to the cause of action.

 

(2) It is the duty of the court, in entering judgment for plaintiff in that action, to add to the    amount of special damages actually incurred that are assessed by the verdict of the jury,    or found by the court, interest on that amount calculated at the legal rate, as defined in Section 15-1-1, from the date of the occurrence of the act giving rise to the cause of action to the date of entering the judgment, and to include it in that judgment.

(3)   Interest claimed on any special damage shall be computed as of July 1 of the year in which that special damage was actually incurred.

(4)    Interest under subsections (1) and (2) shall be simple interest and not compounded.

(5)    As used in this section, “special damages actually incurred” does not include damages for    future medical expenses, loss of future wages, or loss of future earning capacity.   

    

We expect the plaintiff’s bar to vigorously fight these proposed modifications when the legislature meets in January. Strong & Hanni has been instrumental in working with legislative leaders to see that this statute be made fairer for defendants in civil suits. We will keep you apprised of our efforts to enact this important legislation.

 Summary provided by Stephen J. Trayner

 

 

Rule 35 IMEs Under Attack

Strong & Hanni is currently involved in resisting attempts by the Plaintiffs’ Bar to dilute the value and effect of Rule 35 medical examinations.  

    In recent months, the Plaintiffs’ Bar approached the Utah Supreme Court Advisory Committee for the Utah Rules of Civil Procedure with proposed amendments that would impair the ability of defendants to defend themselves through the use of Rule 35 medical examinations.  Historically, civil defendants in personal injury actions have been permitted to obtain medical evaluations performed by a physician or care provider of their choosing.  Over the course of several years, the Plaintiffs’ Bar in the State of Utah has waged a campaign in part to discourage physicians from participating in such examinations and to impose limitations on such examinations that render such examinations less effective.

    Stephen J. Trayner of Strong & Hanni and two other members of the Utah Defense Lawyers Association (“UDLA”) have been appointed by the UDLA Board to serve as spokespersons for the Defense Bar before the Supreme Court’s Advisory Committee on the Rules.  Currently before the Committee is a proposal that would require such medical examinations to be recorded, either through the use of video or audio tape.  The proposed amendments also would require many medical examiners to provide copies of all prior defense related examination reports for a period of four (4) years.  Production of such reports would be at the expense of the defense lawyer or defendant retaining that physician or care provider to perform a Rule 35 examination.  In recent days, Plaintiffs Bar has also suggested that they will be seeking further modifications and limitations to the scope and nature of a defendant’s right to use Rule 35 examinations.  

    During the pendency of personal injury actions, defense lawyers frequently need to retain the services of physicians, neuropsychologists, psychologists, physical therapists, and other health care providers to conduct Rule 35 examinations.  Strong & Hanni is playing an active role in preventing any further dilution of a defendant’s right to a Rule 35 examination.

    It is anticipated that the Supreme Court’s Advisory Committee will make recommendations to the Utah Supreme Court this fall on any amendments to Rule 35 of the Utah Rules of Civil Procedure.  

Summary provided by Stephen J. Trayner

Strong & Hanni News

1) Clifford J. Payne Joins Strong & Hanni

Strong & Hanni is pleased to announce Clifford J. Payne has joined the firm as shareholder. He will be a member of the Construction Law, the Products Liability and the Transportation practice groups.

Cliff received his B.A. in Finance from the University of Utah in 1986. He received his J.D. from Brigham Young University in 1989. He was admitted to the Utah State Bar; and the U.S. District Court, District of Utah in 1989; and the Wyoming State Bar in 2007. He is a member of the Utah Defense Lawyers’ Association, where he served as President from 2001-2002; the Defense Research Institute; and the Salt Lake County Bar.

Mr. Payne’s primary areas of practice include Insurance Defense, Construction Defects, Product Liability, Trucking Accidents, and General Civil Litigation.

2) Peter Christensen Elected to UDLA Board 

Strong & Hanni is pleased to announce that Peter H. Christensen has been elected to the Utah Defense Lawyers Association Board of Directors.

Peter is a shareholder of the firm. He received a B.S. in English and Political Science in 1985 and a J.D. in 1988 from Brigham Young University. He was admitted to the Oregon State Bar; Utah State Bar; and the U.S. District Court, District of Oregon and District of Utah in 1989. He was admitted to United State Supreme Court in 1998. He is a member of the Federal Bar Association, where he served as President of the Utah Chapter in 2002; the Salt Lake County Bar Association; and the Multnomah County Bar Association. His areas of practice include Transportation, Insurance Defense and Civil Litigation.

3) Steve Trayner admitted to the American College of Trail Lawyers

Stephen J. Trayner has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in America. The induction ceremony at which Steve became a Fellow took place recently before an audience of approximately 700 persons during the recent 2008 Spring Meeting of the College in Tucson, Arizona.

Stephen J. Trayner is the managing shareholder at the law firm of Strong & Hanni.  He received a B.A. in Political Science from Brigham Young University, where he graduated magna cum laude in 1982.  He received a J.D. from the University of Utah in 1986.  Steve became a member of the Utah State Bar in 1986. He has also been admitted to practice before the U.S. District Court, District of Utah and the Ninth and Tenth Circuits. He is a member of the Defense Research Institute, and the Salt Lake County Bar Association.  He previously served as the President of the Utah Defense Lawyers Association from 2003-2005.  His areas of practice include Insurance Defense, Product Liability, Transportation, Professional Liability, Commercial Litigation and Civil Litigation.