Insurance Defense Lawyer & Attorney : Strong & Hanni Law Firm : Product Liability, Insurance Coverage

    Utah’s Court of Appeals published Fox v. Brigham Young University, and in doing so, has added a potential hurdle for Plaintiffs in slip and fall cases. The Court of Appeals addressed two interrelated issues in its opinion.  First, the Plaintiffs objected to the admission of an affidavit and medical report prepared by BYU’s volunteer emergency medical technicians on the basis that the evidence violated Utah Code Ann. § 78-27-33, which provides:

     Except as otherwise provided in this act, any statement, either written or oral, obtained from an injured person within 15 days of an occurrence or while this person is confined in a hospital or sanitarium as a result of injuries sustained in the occurrence, and which statement is obtained by a person whose interest is adverse or may become adverse to the injured person, except a peace officer, shall not be admissible as evidence in any civil proceeding brought by or against the injured person for damages sustained as a result of the occurrence, unless:

       (1) a written verbatim copy of the statement has been left with the injured party at the time the statement was taken; and

       (2) the statement has not been disavowed in writing within fifteen days of the date of the statement or within fifteen days after the date of the injured person's initial discharge from the hospital or sanitarium in which the person has been confined, whichever date is later.

    The Plaintiffs also appealed the trial court’s decision dismissing their claims for failure to present expert testimony to prove the cause of her fall.

    The Foxes filed suit against BYU alleging that Mrs. Fox was injured as she descended a stairway on the campus, and fell.  A passerby noticed Mrs. Fox and sought help.  BYU’s volunteer EMTs arrived and examined Mrs. Fox.  When the EMT’s arrived, they observed that Mrs. Fox’s right leg was obviously swollen and that there was deformity on both sides of her leg.  However, there was no external trauma to her knee or leg, and no visible damages to the skin of of her knee or leg, and her pants were not ripped or torn

    While the EMTs were assessing Mrs. Fox’s condition, she repeatedly stated that she felt her right knee go out as she was falling down.  She also admitted that she had been diagnosed with osteoarthritis in her right knee, and there was missing cartilage in that knee.  She also stated that she did not hold BYU responsible, but she always felt those particular stairs were too narrow and dangerous.

    Mrs. Fox’s statements were transcribed, in a report which was presented to Mrs. Fox, which she signed.

    Several days later, Mr. Fox went back to the scene of the fall and noted there was some cracking of the stair’s cement and that some of the metal nosing’s on the stairs were loose.  He took pictures of the cement and nosings and the stairs were replaced shortly thereafter, as an improvement to the campus which was scheduled prior to Mrs. Fox’s fall.

    After the Foxes brought suit, and prior to the scheduled bench trial, BYU brought a motion in limine asserting that the negligence claim failed because the Foxes did not have an expert to establish their prima facie negligence claim.  Specifically, BYU asserted that Mrs. Fox admitted a pre-existing physical condition, osteoarthritis, as a potential cause for the fall.  BYU also argued that the biomechanics involved in the fall, and the medical cause of the injuries were not within the ordinary purview of a lay witness, and the Foxes had to utilize an expert to prove their case.

    The trial court and the Court of Appeals agreed with BYU’s position.  The courts held that Mrs. Fox’s statements to the EMTs as contained in the report and the EMTs’ affidavits were admissible under Rule 803(4) of the Utah Rules of Evidence as statements made by Mrs. Fox for purposes of medical treatment and diagnosis.

    The courts also concluded that Mrs. Fox’s lay testimony was insufficient to establish the element of causation because the trial court had been presented with two plausible theories of causation 1) failure of an osteoarthritis knee, or 2) defective stairs, and absent expert testimony, the court would have to speculate to choose between two theories.  

    This ruling is significant because defendants can now look to whether there may be other causes for the accident, not just to create doubt in jurors’ minds, but to obtain a summary dismissal of certain slip and fall claims if expert testimony is not presented by a plaintiff.  This can result in weeding out suspicious claims and save insurers the expenses of trial.  

Summary provided by Peter H. Barlow

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The following are the cases contained in the Utah Advance Reports that are relevant to the insurance industry.

A.   Berry v. Greater Park City Company, 2007 UT 87 : Utah Supreme Court Allows Use of Pre-Injury Release to Bar Negligence Claims

Significance of decision: The court upheld existing law generally permitting the use of pre-injury releases for ordinary negligence claims and outlined the level and type of proof necessary to seek dismissal of gross negligence claims by way of summary judgment.

            A skier was injured while competing in a ski race hosted by the defendant ski resort. Prior to participating in the race, the skier had signed a Release of Liability and Indemnity Agreement. The plaintiff sued the ski resort, alleging claims of ordinary negligence, gross negligence, and strict liability. The district court dismissed each of those claims on summary judgment.

            On appeal, the Utah Supreme Court first considered whether the preinjury release was enforceable as to the claims of ordinary negligence. The court found that such releases were enforceable so long as they were not contrary to the public interest. The court then set forth six characteristics to weigh in determining whether an exculpatory provision should be invalidated for a particular activity. The characteristics to consider are whether: (1) the activity concerns a business generally thought to be suitable for public regulation; (2) the party seeking exculpation performs a service of great importance to the public; (3) the party holds itself out as willing to perform the service for any qualified member of the public; (4) the service being offered is essential to the point of giving the party seeking exculpation a decisive advantage of bargaining strength; (5) in exercising its superior bargaining power, the party offers the public a standardized contract of adhesion; and (6) as a result of the transaction, the participant is placed under the control of the party seeking exculpation. In applying those guidelines to the facts at hand, the court answered most of the above questions in the negative. As such, it found that the release was enforceable with regard to the allegations of ordinary negligence.

            However, the court held that the district court had improperly dismissed the gross negligence claim. The court noted that none of the parties had directed the court to the appropriate standard of care with regard to the design and construction of skiercross courses. The court then stated that “[i]dentification of the proper standard of care is a necessary precondition to assessing the degree to which conduct deviates . . . from the standard of care – the core test in any claim of gross negligence.” Without evidence of that standard of care, the gross negligence claim should not have been dismissed.

            Finally, the court upheld the dismissal of the strict liability claim, noting that individuals who voluntarily participate in an activity are excluded from seeking damages based on strict liability.

B.   Rothstein v. Snowbird Corporation, 2007 UT 96 : Utah Supreme Court Disallows Use of Pre-Injury Releases at Ski Resorts

Significance of decision: Despite the decision in Berry v. Greater Park City Company, the court essentially disallows all pre-injury releases used by ski resorts. This does not affect the use of pre-injury releases in other areas.

            Mr. Rothstein had a season pass to Snowbird as well as a separate membership that allowed him to bypass ski lift lines. Both the season pass and the membership required that Mr. Rothstein sign releases of liability, which he did. Mr. Rothstein was later injured when he ran into a retaining wall on a ski run. Mr. Rothstein sued claiming the retaining wall was not sufficiently marked so that it could be seen by skiers.

            The trial court dismissed Mr. Rothstein’s claims based on the two releases he had signed. Mr. Rothstein appealed claiming both releases violated public policy.

            On appeal, the Utah Supreme Court analyzed the statutory construct applicable to ski resorts. The court focused on the statutory language that gave immunity to ski resorts for liability arising out of inherent risks of skiing. However, the court noted that the expressed legislative reason for that immunity was to allow ski resorts to more easily and affordably obtain insurance. As such, the divided court reasoned it was the intent of the statute to permit other liability claims to be brought against ski resorts – otherwise such insurance would not be necessary. 

            The court summarized its reasoning as follows:

The premise underlying legislative action to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance. By extracting a preinjury release from Mr. Rothstein for liability due to their negligent acts, Snowbird breached this public policy bargain.

The 3-2 decision includes a strong dissent by Justice Wilkins which was joined by Justice Durrant.

C.   Matheson v. Marbec Investments, LLC, 2007 UT App 363 : Court of Appeals Outlines Premises Liability Duties of Subsequent Purchaser of Real Property

Significance of decision: Where a subsequent purchaser of real property does not create a pre-existing dangerous condition, it is not liable for the condition unless it has notice and an opportunity to repair the condition. The court outlined the duties to inspect and maintain that apply to subsequent purchasers.

            A father was injured when a stair gave way while he was helping his son move out of an apartment. The father and his wife filed suit against the defendant, the owner of the apartment complex. The owner of the complex did not construct the apartments or the stairs, but had purchased them from a prior owner. The trial court dismissed the plaintiffs’ claims on summary judgment, finding that the defendant had not created the defective condition and had no actual or constructive notice that there was a problem with the stairs.

            On appeal, the plaintiffs conceded that the owner did not have actual notice of the defect. However, the plaintiffs argued that the owner had constructive notice because it had a duty to inquire into the safety of the stairs. Nevertheless the Utah Court of Appeals upheld the trial court’s dismissal, finding that the defendant had complied with its duty to inspect the stairs. In so doing, the court noted that a principal of the owner, who also served as a licensed general contractor, had performed physical inspections of the complex and stairs on several occasions. Furthermore, the defendant had hired an appraiser to inspect the complex, including the stairs.

            The plaintiffs argued that a more thorough inspection should have been required in this instance because owner was in the business of buying properties and its principal was a licensed contractor. However, the plaintiffs failed to establish that the principal had actual experience constructing stairs, and therefore there was no evidence that a higher duty should have been imposed on the defendant “than that of an ordinary prudent purchaser.”

D.   Carbaugh v. Asbestos Corp. Ltd., 2007 UT 65 : Court Premits Out-Of-State Doctors to Examine Litigants as Part of Expert Witness Services

Significance of decision: The court outlined when and how medical doctors from other states may conduct pretestimony medical exams even though they are not licensed to practice medicine in Utah, if such exams are ultimately to be used as part of expert witness testimony in litigation.

           A California doctor came to Utah and conducted clinics to determine if certain individuals had been exposed to asbestos. Some of these individuals filed suit and listed the California doctor as their expert witness. The defendants moved for summary judgment, arguing that the California doctor’s lack of Utah credentials rendered him unqualified to testify as a medical expert. The trial court agreed, finding that the doctor violated the Utah Medical Practice Act. 

            The Utah Supreme Court reversed the trial court. The court stated that the Utah Medical Practice Act allows doctors who are licensed to practice in other states to conduct “pretestimony medical evaluations in preparation for their forthcoming testimony as expert witnesses.” Id. at ¶ 9. The act specifically allows an exception for “an individual providing expert testimony in a legal proceeding.” U.C.A. § 58-67-305. The court found that this exception applies not only when the witness is in the witness chair but also covers the pretestimony medical evaluations. 

E.   Ellis v. Estate of Ellis, 2007 UT 77 : Utah Supreme Court Abrogates Interspousal Immunity Doctrine

Significance of decision: The court clarified that the doctrine of interspousal immunity has been abrogated in Utah.

            In this case a wife filed suit against her deceased husband’s estate for personal injuries she suffered in a car accident that occurred as a result of her husband’s negligence. The trial court found that the wife’s claim was barred by the common law doctrine of interspousal immunity. Also, the trial court ruled that lay affidavits regarding the wife’s mental incompetence were inadmissible to toll the statute of limitations.

            The Utah Supreme Court reversed the trial court on both these issues. First, the court reiterated that the common-law doctrine of interspousal immunity has been abrogated with respect to all claims. The court reviewed the history of interspousal immunity act in Utah, which the court describes as “tortuous.” After reviewing the various acts and case law, the court states that “we conclude that interspousal immunity has been abrogated in Utah with respect to all claim [meaning both negligent and intentional torts].” Id. at ¶ 24. The court further found that the justifications for interspousal immunity, such as martial discord and collusion, were meritless.

            Second, the court found that the trial court erred in its decision that lay affidavits were insufficient to establish a genuine issue of material fact as to the plaintiff’s mental incompetency. The court found that lay affidavits are sufficient to create a genuine issue of material fact as to mental competency so as to toll the statute of limitations under U.C.A. Section 78-12-36.

F.   Newman v. White Water Whirlpool, 2007 UT App 303 : Utah Supreme Court Raises Questions About "Going and Coming" Doctrine

Significance of decision: The court explained that the “going and coming rule” ordinarily involves fact questions surrounding whether the employer was gaining some independent benefit from the employee’s travel beyond the employee simply going to or coming from work.

            In this case, the plaintiff was injured by a White Water employee. White Water was granted summary judgment on its argument that the employee was commuting to work and was not in the course and scope of his employment at the time of the accident.

            The Utah Court of Appeals first notes that scope of employment questions are inherently fact bound. The court stated that to determine whether an employee is within the course and scope of his employment there is a three part test. First, an employee’s conduct must be of the general kind the employee is employed to perform. Second, the employee’s conduct must occur within the hours of the employee’s work and the ordinary spatial boundaries of the employment. Third, the employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest. The court also stated that there is a general rule that an employee is generally not in the scope of his employment for purposes of third party negligence claims when he is traveling to and from work. 

            The court found that it was inappropriate for the trial court to grant summary judgment because a trier of fact could have determined that the employee was in the course and scope of his employment based on the type of work that he did. The employee’s regular duties included hauling materials to job sites, performing installations, and returning unused materials to the employer’s warehouse. The employee was traveling to the warehouse with tools and materials from the previous day’s work. Therefore, the court stated that reasonable minds might differ as to whether the employee was working and reversed the summary judgment.

Summaries provided by Andrew D. Wright

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The Utah Legislature convenes for its annual 45 day session in mid-January. Stephen Trayner and Andrew Wright of Strong & Hanni once again will serve as lobbyists for State Farm Insurance and the Utah Defense Lawyers Association.  

The plaintiff’s bar has been very active and has a variety of proposals for 2008 including:

· Increasing the minimum financial responsibility limits on automobile insurance policies in the state from 25/50/15 to 30/60/15;

· Amending the state’s survival statute to allow for the recovery of general damages by a decedent’s estate even if the decedent dies of causes wholly unrelated to the underlying accident;

· Amending the state’s automobile liability arbitration statute, Utah Code Ann. 31A-22-321, in such a way as to subject carriers to increased risk of bad faith exposure on minimal limits cases; and

· Amending the Utah Comparative Fault Act to reinstitute some elements of joint and several liability.

Strong & Hanni is prepared to fight these pro-plaintiff, anti-Tort Reform measures. In addition, Strong & Hanni has been involved in drafting and lobbying for the following measures:

· Amending the Utah Comparative Fault Act to include intentional torts within the definition of “fault” so as to provide that no negligent party is held financially liabile for the torts or crimes of another person;

· Amending the PIP statutes to clarify that once a carrier has paid its liability limits, no contractual duty to reimburse a PIP carrier exists; and

· Amending the insurance code to permit the settlement of wrongful death claims where there is only statutorily mandated minimum liability coverage available quickly and efficiently.

Summary provided by Stephen J. Trayner

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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. Defense Verdict in Three Day Jury Trial  

    Peter H. Christensen recently obtained a defense verdict after a three day jury trial.  The case involved a rear end automobile accident where liability was stipulated to by the defendant.  The plaintiff alleged that she sustained a broken nose in the accident as well as neck and back injuries.  The plaintiff’s witnesses included both a chiropractor and a plastic surgeon.  The defendant responded with an IME physician and a biomechanical expert, claiming that the accident forces were not sufficient enough to have caused the alleged injuries, and that plaintiff’s symptoms pre-dated the accident.  After nearly two hours of deliberation, the jury returned a verdict finding that the medical expenses reasonably related to this accident were less than the statutory threshold of $3,000, and that plaintiff was therefore entitled to no damages.  

2. Summary Judgment for Excess Insurer 

    Paul M. Belnap, Andrew D. Wright and James C. Thompson successfully represented an excess insurer in a contribution claim involving two primary insurers.  After several years of litigation, including a successful appeal to the Tenth Circuit, Strong & Hanni obtained favorable rulings by way of summary judgment which ultimately forced the two primary carriers to pay nearly $1.5 million in contribution.  The case shows that where one insurer steps in to protect its insured and other insurers fail to contribute properly, Utah courts will allow the paying insurer to recover from the non-paying insurer by way of a contribution cause of action.

3. No Cause in Auto-Bicycle Case

    Peter H. Barlow and H. Scott Jacobson recently won a complete defense verdict after a four day jury trial. The lawsuit concerned a 1995 automobile versus bicycle accident. The plaintiff, who was twelve years old at the time of the accident, attempted to cross a busy street on his bicycle and failed to signal, look or give any indication that he intended to cross the road. The defendant was operating her vehicle within the speed limit, within her lane of travel, and was watching the bicyclist at all relevant times before he darted into the side of her car.  As a result of the accident, the plaintiff suffered a documented brain injury and requested a multi-million dollar award for a complete loss of past and future wages, and for past and future medical treatment and care for the rest of the plaintiff's life. After fifty minutes of deliberations, the jury returned a unanimous verdict indicating that the defendant was not negligent.     

4. Summary Judgment for Driver in Wrongful Death Claim

    Robert L. Janicki and Lance H. Locke recently obtained summary judgment in a wrongful death action arising out of a single vehicle accident.  The plaintiff, the mother of the decedent, brought an action against the defendant driver of the vehicle in which the decedent was a passenger at the time of the accident.  At the time of the accident, the defendant and the decedent were returning home from an out-of-state business trip.  The defendant’s motion for summary judgment was brought pursuant to Utah Code Ann. § 34A-2-105 which provides that workers’ compensation shall be the exclusive remedy by employees or their heirs against an employer or against another employee acting in the course and scope of his employment.  In opposing the motion for summary judgment, the plaintiff argued that, in returning from the out-of-state business trip, the parties fell within the “coming and going” rule which states that employees who are merely commuting to and from work are not acting in the course and scope of their employment.  The Court rejected the plaintiff’s argument by finding that the commute home from the out-of-state business trip was part of a “special activity” which was undertaken for the benefit of the employer.  Because the parties were found to be acting in the course and scope of their employment at the time of the automobile accident, the Court ruled that the exclusive remedy provisions of the Utah Labor Code served to bar the plaintiff’s wrongful death lawsuit against the defendant.

5. Summary Judgment for General Contractor in a Slip and Fall Case

    Stephen J. Trayner and H. Scott Jacobson recently obtained summary judgment in a slip and fall case.  The plaintiff was an employee of a local grocery store, and the slip and fall occurred while the plaintiff was walking through the produce department of the grocery store.  At the time of the incident, the grocery store was undergoing extensive renovation work.  Strong & Hanni was defending the general contractor that was performing the renovation work.  Throughout the course of discovery, the plaintiff was unable to produce any evidence identifying the specific substance or condition that caused her to slip and fall, but attempted to argue that the fall was likely caused by conditions related to the ongoing construction such as construction dust and an unfinished floor near the produce racks.  The defendant’s motion for summary judgment argued that the plaintiff has the burden of establishing what the alleged dangerous condition actually was, and that summary judgment should be granted because the plaintiff had failed to present any evidence of what she actually slipped on.  The trial court agreed that plaintiff had failed to produce sufficient evidence to create a triable issue of fact, and that plaintiff’s various theories of what she might have slipped on could only lead a jury to speculate as to the cause of the incident.  Summary judgment was granted, and all claims against the contractor were dismissed with prejudice.

6. Summary Judgment for Insurance Carrier In Breach of Contract Claim

    Robert L. Janicki and Lance H. Locke recently obtained summary judgment on behalf of their insurance carrier client. The plaintiff, a governmental entity, brought suit against the insurance carrier alleging breach of contract. The claim for breach of contract was asserted on the basis that the plaintiff was required to be named as an additional insured under the insurance carrier’s policy of insurance pursuant to the plaintiff’s agreement with the co-defendant construction company with whom the plaintiff had contracted. The plaintiff sought recovery of funds it had paid out to a third-party as a result of an alleged defect in the construction project which was completed a few months prior to the date of loss by the co-defendant construction company. The court granted the insurance carrier’s motion for summary judgment and ruled as a matter of law that the terms of the insurance policy terminated the plaintiff’s status as an additional insured under the policy once the construction project was put to its intended use by the plaintiff.

7. Summary Judgment for Trucking Company in Property Damage Claim

    Robert L. Janicki and Lance H. Locke recently obtained partial summary judgment on behalf of their client, a trucking company. The plaintiff, the insurance carrier for a property owner whose property was allegedly damaged by one of the trucking company vehicles, argued that the trucking company was bound by the arbitration award issued as a result of an arbitration between the plaintiff insurance carrier and its insured property owner. The court granted the trucking company's motion for summary judgment finding as a matter of law that the trucking company was not bound by the arbitration award.

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