Utah Insurance Law Blog

Rule 35 IMEs Under Attack

mfankhauser@strongandhanni.com (Matt Fankhauser) — Fri, 09 May 2008 09:31:27 -0700

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

mfankhauser@strongandhanni.com (Matt Fankhauser) — Fri, 09 May 2008 09:11:19 -0700

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.

Utah Appellate Update

mfankhauser@strongandhanni.com (Matt Fankhauser) — Fri, 09 May 2008 09:06:04 -0700

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

Reese v. Tingey Constr., 2008 UT 7 (Utah 2008): Utah Supreme Court Underlines Confidentiality of Mediation Proceedings.

After obtaining workers compensation benefits, an employee sued a contractor for personal injuries sustained when he fell from a third-story balcony. The employee and the contractor attended mediation together with the workers compensation carrier, which had a subrogation interest in any settlement. The employee and contractor reached an oral settlement agreement during mediation, but the workers compensation carrier would not sign a memorandum of understanding documenting the settlement, claiming it had not agreed to all of the settlement terms.

The employee and contractor then filed a motion to enforce the settlement agreement they claimed was reached at mediation. The workers compensation carrier opposed the motion and argued that the employee could not present evidence of the settlement discussions from the mediation. The trial court found that “mediation discussions contain 'confidential' and 'non-confidential' discussions.” The trial court ordered that the workers compensation carrier’s mediation counsel “appear and be deposed regarding the content of the mediation . . . including the process of the mediation and the conversations and agreements that were made during the mediation.”

On interlocutory appeal, the Utah Supreme Court reversed. The Court initially noted that confidentiality of mediations “serves the important public policy of promoting a broad discussion of potential resolutions to the matters being mediated” and that “this candid exchange of information and ideas can be achieved only when the parties are assured that their communications will be protected from postmediation disclosure.” As such, the Court held that all communications from a mediation are confidential and that in order for a settlement reached at mediation to be enforceable, all parties must sign a written settlement agreement.

The Court did note some exceptions to the broad confidentiality rule, including: (1) when the parties agree that certain information from the mediation may be disclosed; (2) a written agreement from the settlement to be filed with the court as a judgment; (3) information regarding child abuse or neglect or similar crimes; and (4) evidence regarding fraud or duress during the mediation process.

Sorensen v. Barbuto, 2008 UT 8, P1 (Utah 2008): Utah Supreme Court Prohibits Ex Parte Communications with Treating Physicians.

A passenger in a single-automobile accident sought treatment with his doctor for eighteen months before having to switch providers due to a change in his health insurance. The passenger later filed a personal injury lawsuit against the driver of the vehicle. The defendant obtained a copy of the doctor’s medical records and subpoenaed him to testify at an upcoming trial. During a five-month period of trial preparation, the doctor spoke with the personal injury defendant’s attorneys and agreed to testify as an expert witness on behalf of the defendant. The passenger did not know of the communications between the doctor and the defense attorneys until just before trial, at which time he filed a motion in limine to exclude the doctor’s testimony. The trial court excluded the doctor in the basis that he had not been properly designated as an expert and the passenger went on to prevail at the personal injury trial.

The passenger then filed a subsequent lawsuit against the doctor claiming he breached the duty of confidentiality and committed other torts by communicating ex parte with the defense attorneys. The trial court granted a motion to dismiss on the grounds that the passenger had waived the physician-patient privilege when he filed suit against the driver because the passenger placed his physical condition at issue. (See Utah Rule of Evidence 506.) The case was ultimately appealed on certiorari to the Utah Supreme Court.

On appeal the Utah Supreme Court first held that Rule 506 only provides a limited waiver of the physician-patient privilege. The Court stated that “a waiver under rule 506(d)(1) does not mean that the patient has consented to the disclosure of his entire medical history.” Instead, “Rule 506 is only broad enough to allow the disclosure of information relevant to an element of any claim or defense.” Therefore, the Court held that Rule 506 “is a limited waiver of privilege, confined to court proceedings, and restricted to the treatment related to the condition at issue.”

The Utah Supreme Court next held that a physician’s duty of confidentiality is not limited by Rule 506. The Court explained that “Rule 506 undoubtedly allows a treating physician to disclose confidential information as part of a court proceeding, but a waiver of that privilege is not a waiver of the healthcare fiduciary duty of confidentiality. This duty of confidentiality continues to control to whom and what information the physician may release even when the evidentiary privilege has been waived.”

Given the above reasoning, the Court concluded that a treating physician may not have ex parte communications with counsel opposing the patient and that a treating physician may not act as a retained expert witness for an opposing party. Contacts between a treating physician and opposing counsel must be limited to formal discovery methods.

N.M. ex rel Caleb v. Daniel E., 2008 UT 1 (Utah 2008): Utah Supreme Court Considers Accidental Versus Intentional Conduct Under “Occurrence” Definition of Insurance Policy.

Eight-year-old Daniel was teased by seven-year-old Caleb and others during a hockey camp. After several days of being teased, Daniel swung his hockey stick at Caleb striking him in the head and causing a brain injury. Daniel testified he was aiming at Caleb’s shoulder, and did not intend to hurt Caleb.

Daniel was covered by a homeowner’s insurance policy which indemnified against liability for “damages because of bodily injury or property damage caused by an occurrence.” The policy defined an “occurrence” as “an accident, including exposure to conditions which result in: bodily injury; or property damage.” The policy did not further define the term “accident.”

Caleb filed suit against Daniel and his insurer seeking a declaratory judgment that the insurer must provide coverage to Daniel for any legal liability arising out of the incident. The insurer obtained summary judgment when the trial court found that the incident was not an “accident” under the terms of the policy.

On appeal, the Utah Supreme Court used the definition of “accident” from case law and defined the term to be “means which produce effects which are not their natural and probable consequences.” In other words, the Court said, “[a]n effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means.”

Using this definition of “accident” the court explained that there are two independent methods by which bodily injury may be deemed non-accidental. First, injury is not accidental if it is the result of actual design or intended from the perspective of the insured. Second, injury is not accidental if it is the natural and probable consequence of the insured’s act or should have been expected by the insured. The Court stated that the first method presents a factual question as to what the insured intended and the second method generally presents a legal question as to what the average individual would expect to happen under the circumstances.

Applying this methodology to the facts of the case, the Court indicated that Daniel’s intentions needed to be measured in light of his young age and needed to focus on the nature of the injury, not the act that led to the injury. As the Court summarized, “we do not examine whether an act is intentional or deliberate, but rather whether the result was intended or expected.” However, the Court tempered this analysis by adding that “the specific type of injury suffered need not be intended or expected by the insured” and recognized that some injuries are “so inherently injurious” that they cannot be accidental.

The Court concluded that the average eight-year-old would not necessarily expect that nontrivial bodily injury would result from swinging a hockey stick at another child’s pad-protected shoulder and held that this was an issue of fact that would need to be determined at trial.

Begaye v. Big D Constr. Corp., 2008 UT 4 (Utah 2008): Utah Supreme Court Reiterates Limits of Liability of General Contractors under Retained Control Doctrine.

A general contractor was hired for a large construction project at the University of Utah. As part of its contract with the owner, the general was “responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the project.” The general hired a masonry subcontractor to build several walls for the project. The subcontract stated that the subcontractor was an independent contractor and was responsible for its own employees.

An employee of the subcontractor was killed while helping to build “Wall 39.” The employee’s widow filed a wrongful death suit against the general. The general moved for summary judgment on the basis that it did not have control over the manner and method of the work that caused the employee’s death. The trial court granted summary judgment in favor of the general because the general had not directed the subcontractor on how to build Wall 39 and because it did not control the method of injury.

The Utah Supreme Court affirmed summary judgment in favor of the general. The Court held that, although the general had a broad supervisory role over when and where the subcontractor worked, it did not exercise control or discretion such that the subcontractor “could not carry out the injury-causing aspect of the work in its own way.” As such, the general did not fall within the retained control doctrine.

Pearce v. Utah Athletic Foundation, 2008 UT 13: Utah Supreme Court Permits Pre-Injury Releases for Recreational Activities.

The plaintiff signed a waiver of release prior to riding a bobsled. The plaintiff’s back was injured while riding the bobsled and brought negligence and gross negligence claims against the park. As to the negligence claim, the Court affirmed dismissal because the plaintiff had signed a pre-injury release of liability. In so doing, the Court reviewed the three circumstances under which releases are deemed unenforceable. First, the Court found that the waiver was not contrary to any identifiable public policy. Second, the Court determined that the release was not invalidated by the public interest exception because the release concerned a recreational activity. Finally, the Court found that the release was not ambiguous. Therefore, the Court determined that the release was valid and precluded the plaintiff from bringing an ordinary negligence claim.

As to the gross negligence claim, the Court stated that there is no standard of care fixed by law for bobsled rides. The Court also noted that the parties’ experts had failed to identify the standard of care. Therefore, without having the standard of care established, the Court found that the trial court erroneously dismissed the plaintiff’s claim for gross negligence.

Bowman v. Kalm, 2008 UT 9: Utah Supreme Court Applies “Common Knowledge Exception” to Requirement of Expert Testimony to Show Causation in Medical Malpractice Cases.

In this case, the defendant psychiatrist prescribed sleep medication to a patient. The patient was later found dead under a dresser against her bed frame. The sleep medication was known to make one clumsy. The plaintiff did not provide any expert testimony regarding causation between the breach of duty and the death. The Court found that, although generally expert testimony is required for medical malpractice cases, there is a “common knowledge” exception. This exception is applicable to instances when the causal link between the negligence and the injury would be clear to a lay juror who has no medical training. The Court found that the exception applied to the case and overruled the summary judgment granted to the defendant.

Summaries provided by Andrew D. Wright

Utah Legislative Update

mfankhauser@strongandhanni.com (Matt Fankhauser) — Fri, 09 May 2008 08:56:12 -0700

The Utah legislature was convened from January to March 2008. During the 2008 legislative session, Strong & Hanni attorneys, Stephen J. Trayner and Andrew D. Wright, served as legislative lobbyists for one of the firm’s largest clients, State Farm Insurance, and the Utah Defense Lawyers Association on a number of critical pieces of legislation before the 2008 Legislature.

Following the annual 45 day session, the governor signed more than 400 bills and resolutions into law. More than 100 of these legislative enactments potentially impact consumers, corporations, and insurance companies on tort related topics.

Unless otherwise stated, the effective date for all bills is May 5, 2008. A brief description of a few of these bills is included:

SB 149 Motor Vehicle Liability Policy Minimum Limits

The Plaintiffs’ Bar introduced this bill with the intent of raising Utah’s motor vehicle minimum limits from 25/50/15 to 30/60/20. Strong & Hanni and the insurance industry opposed the bill. We were instrumental in convincing the Editorial Board of Utah’s largest newspaper, The Salt Lake Tribune, to write an editorial opposing the bill. On the last day of the legislature, a compromise was struck raising the limits to 25/6515. This result was more of a win for the industry than it was for the Plaintiff Bar. By only raising the per-accident limit and not the per-person limit, premium increases should be minimal and an insurer’s exposure for one or two people injured in the same vehicle will remain the same. This bill’s effective date is January 1, 2009. As policies come up for renewal in 2009, the liability limits must be equal to or greater than the new mandated limits. This bill takes effect on January 1, 2009.

SB 152 Presumptive Personal Representative

This bill provides automobile insurers with a simplified procedure for resolving the settlement of wrongful death claims where the applicable statutorily mandated insurance limit is being paid to a decedent’s heirs. This bill allows heirs to avoid expensive and lengthy probate procedures for an otherwise asset-free estate. The bill provides that a presumptive personal representative may present and resolve claims for wrongful death, liability, uninsured and underinsured motorist claims without the necessity of a formal court appointment of a personal representative.

SB 155 Punitive Damages Amendments

This bill requires that a court enter a judgment for punitive damages on behalf of the injured party and the state; changes the initial amount to be paid to the injured party from $20,000 to $50,000 and sets priorities for the collection of judgments and attorney fees.

SB 290 Private Investigators’ Access to Driver Licensure Information

This bill removes the provision allowing private investigators holding a registrant license access to personal driver license information, but does not modify the provision allowing private investigators holding an agency license to obtain personal driver license information as allowed by statute.

HB 93 Insurance Fraud Amendments

This bill expands required reporting of fraudulent insurance acts and modifies the requirements of that report. This bill also mandates the reporting of fraudulent insurance activities. The bill provides immunity for organizations such as the National Crime Information Bureau.

HB 144 Motor Vehicle Insurance Amendments: PIP Reimbursement Duties

This bill: provides that there is no statutory right of reimbursement for no-fault/PIP liens between insurers once the at-fault party’s carrier has paid its policy limits. The bill further provides a mechanism for the insurer of the at-fault party which has reimbursed the injured party’s carrier for no-fault/PIP benefits and subsequently determines that some or all of the reimbursed monies are needed to settle a third party liability claim to obtain the return of such funds. Once written notice has been provided to the no-fault/PIP carrier that the reimbursed benefits are needed to fund a settlement of a bodily injury claim, the no-fault (PIP) insurer must return monies within 15 business days.

HB 467 Motor Vehicle Insurance Arbitration Amendments

This bill amends the current state law permitting plaintiffs in motor vehicle accident cases to opt into mandatory arbitration. Under the former law, a party appealing an arbitration award under Utah Code Ann. §31A-22-321, was required to pay certain costs capped at $2,500 unless the appealing party improved the verdict in their favor by 20% in a de novo trial before a district judge. The threshold for an award of costs was raised to a 35% higher/lower verdict on appeal and the cost cap was raised to $4,000.

SB 220 Cause of Action for Defective Construction

This bill restricts causes of action for defective construction to a breach of contract action, unless there is certain other property damage, personal injury, or an intentional or willful breach of a legal duty.

Summary provided by Stephen J. Trayner

Recent Courtroom Victories

mfankhauser@strongandhanni.com (Matt Fankhauser) — Fri, 09 May 2008 08:46:41 -0700

Strong & Hanni has long been recognized as one of the top litigation firms in the State of Utah. Here are is an example of recent courtroom victories by Strong & Hanni attorneys:

1. Defense Verdict in Four Week

Peter H. Barlow recently received a “no cause” jury verdict in favor of his client, a local automotive service shop after a four week trial in Utah’s Fourth Judicial District. The plaintiffs’ vehicle suffered a tire tread separation in July of 2001, and plaintiffs brought personal injury claims against both the tire manufacturer and the automotive service shop that performed a Utah State safety inspection in June, 2001. Plaintiffs’ tire failure expert opined that signs of tire degradation should have been apparent to the automotive service shop in June, 2001 when the inspection was performed. Plaintiffs argued that the automotive service center had a duty to remove the tire from service at the time of the inspection. The jury rejected plaintiffs’ expert's opinions finding that the automotive service center was not negligent in the manner in which it performed its inspection, and also found that the manner in which the inspection was performed did not cause the plaintiffs’ alleged damages.

Additional Hurdles for Slip and Fall Plaintiffs

mfankhauser@strongandhanni.com (Matt Fankhauser) — Thu, 17 Jan 2008 10:30:27 -0700

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

Utah Appellate Update

mfankhauser@strongandhanni.com (Matt Fankhauser) — Thu, 17 Jan 2008 10:22:23 -0700

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

Utah Legislative Update

mfankhauser@strongandhanni.com (Matt Fankhauser) — Thu, 17 Jan 2008 10:15:35 -0700

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

Recent Courtroom Victories

mfankhauser@strongandhanni.com (Matt Fankhauser) — Thu, 17 Jan 2008 09:06:56 -0700

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.

Utah Insurance Law Blog

mfankhauser@strongandhanni.com (Matt Fankhauser) — Wed, 05 Sep 2007 11:26:06 -0700

Strong & Hanni launches the Utah Insurance Law Blog. This will be a resource for legal updates, legislative updates and news dealing with insurance defense.

To subscribe via email or rss please click on the link http://insurance.strongandhanni.com/subscribe.html

Loss of Motion Segment Integrity of the Spine and Impairment Ratings

mfankhauser@strongandhanni.com (Matt Fankhauser) — Wed, 05 Sep 2007 10:56:38 -0700

With the publication of the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (2001) (hereinafter the “Guides”), we have seen a number of cases in which plaintiffs have been awarded Category IV impairment ratings (25-28% whole-person impairment ratings) for loss of motion segment integrity of the spine, arising out of low-impact motor vehicle accidents.

Patrick Luers, M.D., an expert radiologist, has opined in a peer reviewed article, however, that “loss of motion segment integrity . . . as defined in the AMA Guides is rare.” Luers, Motion Analysis of the Cervical Spine, The Guides Newsletter, AMA September/October 2004, at 11. Such a condition most commonly results from a single-level surgical fusion. Id.

Many Category IV spinal impairment ratings are erroneous due to a misinterpretation of the Guides. According to an article authored by Dr. Luers, ambiguous terminology in the medical literature has led to misunderstanding and misinterpretation by those awarding impairment ratings. Luers, Spinal Alteration of Motion Segment Integrity, The Guides Newsletter, AMA March/April 2007, at 1.

On page 379, the Guides define loss of motion segment integrity as an “anteroposterior motion of one vertebra over another that is greater than 3.5 mm in the cervical spine, greater than 2.5 mm in the thoracic spine, and greater than 4.5 mm in the lumbar spine.” Id. As a reference, the Guides cite White AW, Punjabi MM. Clinical Biomechanics of the Spine. 2^nd ed. Philadelphia, Pa: JB Lippincott; 1990.

Dr. Luers has critically analyzed the referenced articles in White and Panjabi’s chapter discussing the instability in the spine “necessary to evaluate normal maximal translation and angular motion thresholds in the spine.” Luers, Spinal Alteration of Motion Segment Integrity, at 1. The literature relied on by the Guides provides that maximal normal translation for the cervical spine is 3.5 mm anterior plus 3.5 mm posterior, for a total translation of 7.0 mm. Id. at 2. For the thoracic spine, the maximal normal translation is 2.5 mm anterior plus 2.5 mm posterior, for a total translation of 5.0 mm. Id. For the lumbar spine, the maximal normal translation is 4.5 mm anterior plus 4.5 mm posterior, for a total translation of 9.0 mm. Id. In other words, the maximal normal translation range for the spine is twice what is reported in the Guides.

Apparently, the authors of the Guide misinterpreted the maximal normal translation seen on the radiographs for either anterior or posterior translation to represent the total normal maximal translation thresholds. For that finding, however, the anterior and posterior thresholds must be added together.

Accordingly, Dr. Luers concludes that “the total translation threshold values described in the Guides are within the normal range and inconsistent with the data in the medical literature; therefore they should not be utilized as established by Category IV loss of motion segment integrity impairment.” Id. at 3.

Typically, a Category IV impairment rating for loss of motion segment integrity arises from a single-level surgical fusion of the spine. Accordingly, it should be extremely rare to see such an impairment rating following a low-impact motor vehicle accident.

Written by Michael L. Ford

What You Say to an Insured May Impact the Scope of Coverage

mfankhauser@strongandhanni.com (Matt Fankhauser) — Wed, 05 Sep 2007 10:45:03 -0700

Earlier this year, the Utah Supreme Court held in Youngblood v. Auto-Owners, that a policyholder can try to prove that he relied reasonably on the agent’s misrepresentations about coverage despite the plain language of the policy. (1) Youngblood bought a business auto policy which did not extend UIM coverage to pedestrians, and later was injured while a pedestrian. He claimed that the agent represented specifically and repeatedly during the application process that he would be covered as a pedestrian.

Auto-Owners pointed out that the policy language did not extend coverage, and the court agreed. Youngblood also admitted that he received a copy of the policy before the accident and did not read it. The court held that Youngblood should have the opportunity to present to a jury his claim that he reasonably relied on the agent’s representations. The court suggested that Youngblood may have a difficult time proving that his reliance on the agent’s verbal statements was reasonable: “Insurance purchasers fail to read their policies at their peril.” If the written terms of coverage are clear and understandable, it is more difficult for the insured to prove reasonable reliance on contrary representations by the agent. Also, the test is not whether Youngblood himself relied on the agent, but whether a reasonable person would have done so. According to the court, this standard will guard against a jury verdict based on undue sympathy.

Inusred Misrepresentations As a grounds for Rescission

Claims handlers deal routinely with losses which are not covered because of an exclusion in the policy. However, rescission of the policy is different. On the one hand, an exclusion or limitation in the policy may require a finding of no coverage for a particular loss, but the policy remains in effect for the policy period and the insurer retains the premium. On the other hand, rescission is an entirely separate theory. Rescission “unmakes” the insurance contract and places the parties back where they were prior to the issuance of the policy, because the policy contract was obtained on false grounds.

Recently, a United States District Judge in Utah granted summary judgment in favor of the insurer to rescind a policy based on misrepresentations by a corporation about its financial condition in its application for a directors and officers liability policy. The corporation had made material misstatements about its financial situation in its application for insurance, which the insurer had relied on when it decided to issue the policy. (2)

Only extreme cases can justify rescission. Trivial or innocent misstatements are not enough. The insured must have some knowledge that the misstatement is untrue. The misrepresentation by the applicant must be material, or made with intent to deceive, and the insurer must rely on it; or the fact misrepresented must contribute to the loss. “Material” in this instance means that the insurer would have rejected the application or would have charged a higher premium for the risk if it had known. (3)

Rescission is a useful tool for the insurer in a proper case. Each case is different and these general rules are not a substitute for your counsel’s opinion based on the facts of the particular case.

(1) Youngblood v. Auto-Owners Ins. Co., 2007 UT 28, filed March 23, 2007.

(2) ClearOne Communs., Inc. v. Lumbermens Mut. Cas. Co., -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 26187 (D. Utah Oct. 21, 2005).

(3) Utah Code Ann. § 31A-21-105, Representations, warranties, and conditions; Hardy v. Prudential Ins., 763 P.2d 761 (Utah 1988); Berger v. Minnesota Mut. Life Ins., 723 P.2d 388 (Utah 1986); Perkins v. Great-West Life, 814 P.2d 1125 (Ut. App. 1991); Derbridge v. Mutual Protective Ins., 963 P.2d 788 (Ut. App. 1998).

Written by Roger H. Bullock

Utah Appellate Update

mfankhauser@strongandhanni.com (Matt Fankhauser) — Wed, 05 Sep 2007 10:45:03 -0700

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

A. General Security Indemnity Co. v. Tipton : Acknowledgement Required for Lower UM Limits

In this case, the Utah Court of Appeals interpreted Utah Code Ann. § 31A-22-305(3)(b). This section contains the waiver requirement for uninsured motorist (“UM”) coverage. The section states:

For new policies written on or after January 1, 2001, the limits of [UM] coverage shall be equal to the lesser of the limits of the insured’s motor vehicle liability coverage or the maximum [UM] coverage limits available by the insurer under the insured’s motor vehicle policy, unless the insured purchases coverage in a lesser amount by signing an acknowledgment form provided by the insurer….

U.C.A. § 31A-22-305(3)(b).

The court acknowledged that “what is meant by the phrase ‘available by the insurer under the insured’s…policy’ is facially ambiguous.” The court determined the statute provides for “three separate amounts of potential UM coverage: the liability coverage, the maximum UM coverage available from the insurer, and the amount of UM coverage actually obtained.” The court determined that the limit “available by the insurer” refers to the amount an insured could have purchased from the insurer.

B. Youngblood v. Auto-Owners Ins. Co.

In this case, the Utah Supreme Court determined that an insured may recover under the doctrine of estoppel when the insurer's agent materially mistated the scope of coverage prior to the purchase of the policy. Youngblod bought an insurance policy for his company. While buying the policy, the agent specifically stated that if he was injured as a pedestrian, he would have coverage. Youngblood bought underinsured motorist protection as part of the policy believing that he had protection as a pedestrain. The express language of the policy stated that Youngblood did not have coverage as a pdestrain. Youngblood was subsequently injured while walking. The court determined that the agent's comments were material misrepresentations and satisfied the first requirement of equitable estoppel.

The court then remanded the case to the trial court for a determination of whether the insured’s reliance on the misrepresentations was reasonable. The fact finder would need to determine whether the insured should have read the policy and determined that the coverage was not what the agent had represented. In this regard, the court noted that “insurance purchasers fail to make the effort to read and understand the content of their insurance policies at their peril.” The court acknowledged, however, that it is not always easy for the reasonable person to navigate and understand their own insurance policies.

C. Tschaggeny v. Milbank Ins. Co. : Prejudgment Interst and Insured's Duty to Read and Understand Policy

In this case, the plaintiff was in an auto accident and made a claim with Milbank under her uninsured motorist policy. The case went to trial and the jury awarded the plaintiff special and general damages. The court ordered prejudgment interest in accordance with U.C.A. § 78-27-44. Three years prior to trial, Milbank paid the plaintiff $12,915.46 on her claim. For this amount, the trial court only ordered interest for the eighteen month time period between the accident and the date of the payment. The plaintiff argued that she was entitled to interest on this amount until the date of the jury award. The Utah Supreme Court rejected this argument, stating that the plaintiff’s interpretation of the statute would “blatantly controvert the express purpose of the statute” and “incentivize bad faith disputes over compensation owed in order to avoid such an unjust result.”

Also in this case, Milbank had made a motion in limine requesting that the trial court prevent the plaintiff from submitting evidence of the medical expenses that had been written off. The plaintiff had health insurance and received a lower rate than the general public for her health care service as a result of her health insurance’s agreement with health care providers. The trial court granted this motion because the plaintiff’s attorney essentially stipulated to it. The plaintiff then raised the issue in a motion for reconsideration asserting that it is improper to reduce the medical expenses. The trial court denied this motion. The plaintiff raised it again on appeal. The Utah Supreme Court did not rule on this issue because the plaintiff had not properly preserved the issue at the trial court level. The Utah Supreme Court indicated that this was an issue of first impression and, therefore, “the trial court’s decision to grant Milbank’s motion in limine and deny Tschaggeny’s motion for reconsideration does not rise to the level of plain error.”

D. Pratt v. Nelson

In this case, the Pratts sued Nelson and her attorneys for defamation based on their conduct in a previous lawsuit. In the previous lawsuit, Nelson sued a large number of individuals in the Kingston polygamous family and organization, including the Pratts. Her claims included intentional and negligent sexual abuse of a child, assault, false imprisonment, and civil conspiracy. A short time after the lawsuit was filed, Nelson and her attorneys held a press conference concerning the lawsuit to which they invited members of the local and national press. The press conference made local, national, and international news.

The Pratts sued Nelson and her attorney for defamation based on the statements at the press conference. The attorneys claimed that these statements were privileged under the judicial proceedings privilege. The Utah Supreme Court analyzed the case to determine if the statements had been excessively published. The court stated that for the judicial proceedings privilege to apply “the statements must be (1) made during or in the course of a judicial proceeding; (2) have some reference to the subject matter of the proceeding; and (3) be made by someone acting in the capacity of judge, juror, witness, litigant or counsel.” The court analyzed the third requirement to determine if the privileged had been lost by making the statements to the press. The court held that “the press generally lack a connection to judicial proceedings sufficient to warrant an extension of the judicial privilege to statements made by parties to the press.” Therefore, the court determined that the statements at the press conference were not protected by the judicial privilege.

Summaries provided by Andrew D. Wright

2007 Utah Legislative Developments

mfankhauser@strongandhanni.com (Matt Fankhauser) — Wed, 05 Sep 2007 10:31:02 -0700

Strong & Hanni played an active role in researching and drafting proposed legislation, as well as lobbying and testifying before the Utah Legislature on various tort reform measures during the 2007 legislative session. Earlier in 2006, Strong & Hanni was hired to perform lobbying on behalf of the State Farm Companies in the State of Utah. Strong & Hanni’s attorneys were frequently called upon to push tort reform issues and to stem the tide of plaintiffs’ legislation meant to change Utah’s conservative litigation climate.

As part of Strong & Hanni’s involvement in the legislature the following bills were enacted:

1. HB 44: Amendments to Utah Code Ann.§ 31A-22-321 (Third Party Bl
Arbitration)

The amendment to the existing arbitration statute:

• provides that a person may elect to submit a third party motor vehicle accident bodily injury claim to arbitration by filing a notice to submit the claim to arbitration within 14 days after the complaint has been answered;

• clarifies that an arbitration award is limited to $25,000 in addition to any available personal injury protection benefits and any claim for property damage;

• provides that a claim for property damage may not be made in such arbitration proceedings unless agreed upon by the parties in writing;

• provides a procedure for a person to rescind an election to arbitrate and provides that a person who rescinds an election may not elect to arbitrate again;

• provides for discovery to be conducted in accordance with the Utah Rules of Civil Procedure and that all discovery is to be completed within 150 days of the election to arbitrate;

• provides for the procedures for selecting arbiter(s) within 90 days of the election to arbitrate; and

• makes other technical changes.

2. SB 113: Amendment to Utah Code Ann. § 31A-22-321 (Savings Statute)

Utah appellate courts had previously interpreted the Utah Savings Statute to allow multiple uses of the savings Statute to revive time-barred claims. The amendment clarifies the legislature’s intent that the savings Statute may be invoked only once by a Plaintiff once a case has been dismissed other than on the merits of the claim.

Efforts to bring about additional tort reform measures, including the lowering of the bodily injury statute of limitations from four years to three years, clarifying that the Utah Comparative fault statute allows for comparisons of fault even among intentional tortfeasors, passing a primary seat belt law, and others were met with strong opposition by the plaintiffs’ bar and were defeated ion 2007. Strong & Hanni will continue to work with state legislatures and others to see that the tide of plaintiff oriented legislation is defeated and to see that these and additional tort reform measures are brought before the legislature in January 2008.

Written by Stephen J. Trayner

Recent Cases Handled by Strong & Hanni

mfankhauser@strongandhanni.com (Matt Fankhauser) — Wed, 05 Sep 2007 09:15:39 -0700

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. No Cause in Low Impact Case

A "no cause" jury verdict in favor of client, the defendant in an auto-accident case filed in the First District Court. The plaintiff was rear-ended by the defendant near a traffic signal in Logan, Utah. The plaintiff alleged that she suffered severe personal injuries as a result of the accident. The defense conceded negligence, but argued that the force from the accident was insufficient to have caused the plaintiff’s injuries. Following a four day long trial, the jury returned a unanimous verdict finding that the defendant’s negligence was not the cause of the plaintiff’s injuries. For more information contact Paul M. Belnap and A.J. Sano.

2. No Cause in Auto-Pedestrian Case Involving a Child

Jury verdict in favor of client, the defendant in an automobile/pedestrian case in the First District Court. The case involved a seven year old child who ran on to a 50 m.p.h. highway and into the side of a trailer being pulled by the defendant. The child sustained a serious brain injury as a result of the impact. The plaintiff claimed that the defendant had plenty of time to see and avoid the child and that other drivers were able to avoid the accident. The plaintiff also claimed that the child lacked the ability to appreciate the risk of high speed traffic. The trial was bifurcated into separate liability and damage phases. Following three days of evidence on liability, the jury returned a unanimous verdict of no negligence on the part of the defendant, thereby ending the case before a second week of evidence on damages. For more information contact Paul M. Belnap and Andrew D. Wright.

3. No Cause in Trigeminal Neuralgia claim

Favorable arbitration ruling in a matter in which the plaintiff was struck from behind by the defendant in an auto-accident. The plaintiff alleged that the accident caused him to suffer a rare condition known as trigeminal neuralgia. The defense conceded negligence, but argued that the collision did not cause the plaintiff’s trigeminal disorder. The arbitrator determined that there was insufficient evidence to show the plaintiff’s condition was caused by the subject accident and awarded only minimal damages. For more information contact Paul M. Belnap.

4. No Cause in 2002 Olympic Accident

Jury verdict of no cause of action in favor of client, Anheuser Busch, in a trial involving a claim for head, neck and back injuries that were allegedly sustained by the plaintiff when he slipped and fell on the ice during a "score on the goalie" contest that was being held on the outdoor skating rink at Bud World at the Gallavan Center during the 2002 Olympic Games. The plaintiff claimed that Anheuser Busch had served him too much beer prior to his participation in the contest, and had hired an incompetent event manager who failed to provide proper instructions and adequate safety equipment for the contest participants. The defense responded with evidence showing that the contest had been properly managed, and that the plaintiff had not been served enough alcohol to make him intoxicated. The jury returned a unanimous verdict finding the plaintiff 75% at fault, and apportioned only 10% of the fault to Anheuser Busch. Based on the jury’s verdict, the court entered a judgment of "no cause" in favor of the defendants. For more information contact Peter H. Christensen

5. Summary Judgment for General Contractor on Personal Injury Claim of Subcontractor's Employee

Granted summary judgment in a case in which Strong & Hanni represented the defendant, a general contractor, in a claim by an injured employee of a subcontractor. The plaintiff was instructed by his employer in the past to not stand under loads which were being lifted by crane. The accident occurred when the plaintiff got underneath a load of truss joists which slipped and fell on him, severing his spine. The facts showed that the general contractor did not supervise, direct or control the work being performed by the framing subcontractor, including the crane operations which resulted in the plaintiff's injuries. The plaintiff argued that the general contractor's overall ability to control safety on the project was sufficient to impose a duty on the general contractor. The trial court disagreed, and ruled as a matter of law that the general contractor was not liable for the plaintiff's injuries. For more information contact Peter H. Barlow and Ryan P. Atkinson.