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Recent Developments

A prominent plaintiff's law firm recently referred to a newer law review article on the billed vs. paid issue.  We will likely see more references to the article which is very biased toward the plaintiff's position.  We thought some of you may be interested in reading it.

  • 02 Feb 2015 1:52 PM | Michelle Barrus (Administrator)

    A Summit County Jury found that the Defendant was not negligent arising from a collision that occurred with the Plaintiff during an adult hockey game in the Park City Hockey no check league.  Plaintiff was on a breakaway towards the goal.  Defendant was on defense and attempted to establish a position between Plaintiff and the goal and placed his stick to attempt to block the Plaintiff's shot.  He was unable to block the puck,  Unfortunately, both players attempted to occupy the same spot of ice at the same time.  As a result of the collision, both fell to the ice.  Defendant had a laceration to his cheek from Plaintiff's stick.  Plaintiff received 2 cracked ribs and, a sprained AC Joint. Defendant was called for a check, a minor penalty.  The league rules specifically state that playing the puck rather than the body is the rule.  Although there is incidental body contact, if players can avoid body conduct, they are required to do so.  Plaintiff hired the State Supervisor of referees to state that Defendant should not have gone so aggressively towards Plaintiff's position, particularly if Plaintiff was shooting the puck.  The video of the game had been sent to the league administrator, who reviewed it and did not escalate the call on the ice. 

    The interesting aspect of this case, was Judge Harris's decision to try it under a simple negligence standard rather than a reckless standard.  So, the jury was instructed with the MUJI negligence instruction with a couple of interesting modifications.  First, if the activity was within the ordinary range of activity of a no check league, then that was evidence that would not support a negligence finding.  However, the jury was also instructed that a violation of  a safety rule can be evidence of negligence, but it is not required.  Because Utah does not have a specific statute, rule or case precedence on using the Reckless standard, the court determined that the default was negligence.  A take away is if you are going to rely upon the referees in the game and the players in a specified recreational activity, to be safe, you should designate them as unretained experts so that they can specifically state that such activity is not out of the ordinary.  Wisconsin has a statute specifically applying the reckless standard to apply to recreational/sporting activities. 

    It was interesting to try this as a negligence case and argue that an inadvertent collision was not negligence. 

    If you have any questions, feel free to let me know. 

    Lloyd R. Jones,
    (801)  517-3032

  • 08 Jan 2015 1:46 PM | Michelle Barrus (Administrator)

    *Notice of the 2015 post judgment interest rates, Utah Code Ann. 15-1-4, which are:

    The general post-judgment interest rate for 2015 is 2.27%.

    The post-judgment interest rate for judgments under $10,000 in actions regarding the purchase of goods and services is 10.27%. Hyperlink can be found below resources/intrates/ interestrates.htm


    *A second post-judgment interest rate may also be news as it went into effect in May 2014 and it is found at 15-1-4(3)(b):


    Except as otherwise provided by law or contract, all final judgments under $10,000 in actions regarding the purchase of goods and services shall bear interest at the federal post judgment interest rate as of January 1 of each year, plus 10%. Hyperlink below.


  • 08 Jan 2015 1:43 PM | Michelle Barrus (Administrator)

    Terry Rooney and Brad Blackham of Snow Christensen & Martineau recently obtained a unanimous no cause jury verdict in a medical malpractice case.  Terry and Brad represented the University of Utah Hospitals and Clinics.  Plaintiff Ella Turner was represented by Mike Worel and Colin King.  Plaintiff presented evidence of $8 million in special damages and requested an additional $8 million in general damages. 

  • 09 Jul 2014 9:14 PM | Michelle Barrus (Administrator)

    Bradley W. Madsen and S. Grace Acosta of the firm Scalley Reading Bates Hansen & Rasmussen, PC, recently obtained a defense verdict on behalf of Sunpeak Association. . The defendant, Sunpeak Association, is an incorporated Homeowners Association of approximately 380 homes located in Park City, Utah. The case was brought by a closely held corporation that owned one of the properties within the Sunpeak community. The case was tried before the Honorable Ryan M. Harris

    The plaintiff alleged that Sunpeak Association had violated the terms of the Community Covenants and Restrictions by failing to enforce, or improperly enforcing, multiple provisions. The plaintiff further alleged that Sunpeak Association was in violation of Utah's Community Association Act, Section 57-8a-213, which restricts an association from taking arbitrary or capricious enforcement action. The plaintiff had previously began construction of a garage addition to the property, and the parties disputed whether construction was authorized. Sunpeak Association ultimately fined the plaintiff for its actions and placed a lien on the property. The plaintiff also alleged that other properties in the Sunpeak community were in violation of the Community Covenants and Restrictions, and that Sunpeak Association was liable for not properly enforcing the Community Covenants and Restrictions as to those other properties. In closing arguments, plaintiff's counsel sought $250,000 in damages, which allegedly arose from a diminution in value to the plaintiff's property. The plaintiff also sought punitive damages.

    In response, the defense argued that Sunpeak was not in breach of the Community Covenants and Restrictions, and that none of its actions constituted arbitrary or capricious enforcement action. The defense pointed out that the Community Covenants and Restrictions are primarily the responsibility of individual homeowners, and that the responsibilities of the Association required it to apply sound judgment and discretion when enforcing the Community Covenants and Restrictions. The defense also argued that the alleged violations of the Community Covenants and Restrictions did not cause any discernible diminution of value to the plaintiff's property.

    The case was tried over four days. The jury of eight deliberated for approximately eight hours before returning a verdict in favor of Sunpeak Association. The jury concluded that Sunpeak Association did not breach the Community Covenants and Restrictions, and that Sunpeak Association did not take any enforcement action that was arbitrary or capricious. Accordingly, there was no award of damages.

  • 07 Jul 2014 1:27 PM | Michelle Barrus (Administrator)
    If you missed our June CLE on Legal Professional Liability Insurance, below you will find a copy of the outline as presented by Michael F. Skolnick of Kipp and Christian.
    • I.                   Area of Practice Factor
    • a.       AOP as pricing consideration
    • b.      Plaintiff vs. defense
    • c.       Greatest areas of risk
    • II.                Premium/Deductibles
    • a.       Graduated premium with claims made policies
    • b.      Difference between claims made and occurrence policies
    • c.       Effect of prior acts coverage
    • d.      5-6 year Amaturation@ process
    • e.       Loss only deductibles - no payment unless settlement or judgment
    • f.       Higher premium; less exposure for out of pocket loss on frivolous claim
    • g.      Higher deductible usually equals lower premium
    • h.      Make sure deductible is amount firm can comfortably handle
    • i.        Assume serious risk of claim every 2-3 years
    • III.             Firm Websites
    • a.       Underwriters will likely scrutinize
    • b.      Know what is on your website
    • c.       Representations about the firm’s experience handling high stakes cases
    • d.      Representations about AOP’s, which may not be identified in application
    • IV.             Applications
    • a.       Be thoughtful and thorough - app. incorporated as part of policy
    • b.      Will ask about conflict checking and calendaring
    • c.       Premium credits for well-conceived, redundant systems
    • d.      Will also ask about fee collection lawsuits
    • e.       Application provides opportunity to Aclean house@
    • V.                Levels of Coverage
    • a.       Policy limits dependent on risk
    • b.      If cannot cover maximum exposure at least cover equivalent of annual net income
    • c.       Discouraging plaintiff=s attorney from rejecting limits offer
    • d.      Per claim limit/aggregate claims limit
    • e.       Risk of multiple claims exposure
    • f.       Defense costs - independent of or inside policy
    • g.      Advantages of having costs outside policy
    • h.      Greater exposure equals greater cost of defense
    • VI.             Submitting Claims or Potential Claims
    • a.       Avoiding risk of non-coverage or policy rescission
    • b.      Consulting coverage counsel if questions arise about need to report
    • c.       Increased premium less expensive than non-coverage
    • VII.          Effect of Claim/Indemnification Payment on Future Premium
    • a.       Effects uncertain - up to underwriters
    • b.      Favorable judgment generally does not wipe slate clean
    • c.       Defense cost considerations/five year rule
    • d.      Generally small claims/low fees don=t have great deal of effect
    • e.       Factors outside your control - actuarial considerations, market factors
    • f.       Multiple claims may indicate high risk practice area or high risk practices
    • g.      Clients= demand for free or discounted services may constitute claim.
    • h.      Read claims reporting requirements in your policy
  • 18 Feb 2014 1:04 PM | Michelle Barrus (Administrator)

    Occasionally, we represent fact witnesses who also qualify as experts.  What do you do when opposing counsel begins asking for expert opinions of such a witness when you have not designated him/her as an expert?  Here is my recent experience.


    I was asked to represent a design engineer in a deposition taken in a personal injury case.  The company for whom the design engineer worked was not a party to the lawsuit but was closely affiliated with the defendant, i.e., his employer does a lot of design work, and oversees a lot of construction, for the defendant.  Plaintiffs’ counsel wanted to find out what my client’s personal involvement in the project had been, and whether certain safety issues had been taken into account during the design phase and then the construction phase of the project.


    Most of the questions were focused upon issues of fact:  What were your responsibilities?  Did you visit the construction site?  Did you think about putting a railing up?  Did you evaluate the cost of making a particular improvement or change in design, etc.  Near the end of the deposition counsel for the plaintiffs asked my client for an expert opinion:  with the benefit of hindsight, and based upon your years of experience as a design engineer, do you see any way in which the design of this project could have been made safer?


    Naturally, to prove that I was awake and listening, I objected that this witness was appearing voluntarily as a fact witness, not an expert witness, and was not in a position to be giving expert testimony.  Not to be deterred, counsel for the plaintiff pressed me:  “are you instructing the witness not to answer?” 


    “Yes,” I said.  “You know the question is inappropriate because this man is here only as a fact witness.  You are not entitled to ask for opinions in this circumstance.”


    “What is the privilege you rely upon to instruct him not to answer?” was the retort.  “You can only instruct a witness not to answer if you have a privilege you are trying to protect.”


    Of course, there is no privilege in the common law or statutory sense of the word, at least so far as I know, that prevents an obviously qualified fact witness from giving expert opinions.  Nevertheless, it was entirely inappropriate and unfair, both to the witness and to the relationship between the witness’s employer and the defendant, to request such an opinion.  It was one of those questions that had no good answer.  If the witness said “I don’t have an opinion” then plaintiffs’ counsel would impeach his credibility as a design engineer.  If he gave an opinion that was not properly thought out, it would be embarrassing to the witness, his employer and the defendant.


    I took the position that U.R.Civ.P. Rule 26(a)(4)(B) was a sufficient justification for an instruction not to answer.  It requires the one deposing the expert to pay the witness’s reasonable hourly fees for deposition time.  We had a lengthy discussionundefinedcompletely civil, I might addundefinedon the record regarding our respective positions.  Neither of us called the judge but counsel for the plaintiff vowed to file a motion and to reconvene the deposition.  Since he already had experts I figured nothing would come of this threat.  I underestimated his determination.


    Within a few weeks I was notified that plaintiffs’ counsel had filed a Statement of Discovery Issues with the court.  As a non-party to the lawsuit, I took the position that this procedure was inapplicable and inappropriate, and that the proper approach was to serve my client with a subpoena (we had appeared voluntarily) and to give me an opportunity to object.  I argued that the Court did not have jurisdiction over my witness until he was brought before the court on some kind of official process.  I did not think it advisable to get involved in the underlying case so I did not respond to the Statement of Discovery Issues.  Since the Statement remained unopposed the Court entered an Order requiring my witness to appear for the 2nd round of his deposition.  “Good luck enforcing this order” I told plaintiffs’ counsel.


    A few weeks later counsel for the plaintiffs served my client with a formal subpoena directing him to appear for his deposition in Salt Lake County, where he lived.  The case was pending in Weber County.  I filed a formal objection to the subpoena, relying not only upon Rule 26(a)(4)(B), but also upon Rule 45(e)(3)(I), which makes it improper to require an undisclosed expert to give opinions that the deposing lawyer did not request.  Further, I relied upon Rule 37 to point out that the Second District Court does not have jurisdiction to enforce a subpoena served upon a witness in the Third District.  The full panoply of briefing ensued.  The centerpiece of plaintiffs’ arguments was that there is no privilege that allows a fact witness to refuse to answer questions seeking expert opinions.  (He was also unjustifiably critical of me for other reasons which I will not go into.)


    Judge DiReda eventually issued an Order denying the plaintiffs’ motion to compel and sustaining my objection to any further questioning of my client for the purpose of eliciting expert testimony.  He ruled that the Statement of Discovery Issues was not the correct method to use when dealing with non-party fact witnesses and that plaintiffs’ counsel was unjustified in his efforts to elicit expert opinions from a non-party fact witness.  He also ruled that he lacked jurisdiction to enforce the subpoena because it was served upon a witness living in a different district for a deposition that was to take place in the residential district.


    I have encountered other circumstances where opposing counsel wanted expert opinions from my fact witnesses but I have never had to put the question to the court nor challenge the axiom that the only basis for instructing a witness not to answer is the existence of a privilege.  To the extent that Judge DiReda’s ruling is any indication of the law, I would say that illegal questions are also a sufficient basis for instructing a witness not to answer.

    Phillip S. Ferguson

  • 03 Dec 2013 9:18 AM | Michelle Barrus (Administrator)

    In an unpublished ruling, Judge Benson found that failure to both file and serve a complaint for a de novo trial of a UIM/UM arbitration award within 20 days of the award bars the de novo review, and makes it subject to a Rule 12(b)(6) motion to dismiss.  In this case, the claimant filed the complaint for a de novo trial within 20 days of the arbitration award as mandated by the statute, but did not serve the UM/UIM insurer until approximately 50 days after award.  The complaint was dismissed on a 12(b)(6) motion.


    Wells v. Hartford Ins. Co. of the Midwest, 2013 WL 5962961 (D. Utah Nov. 7, 2013)

    Submitted by Rick Vazquez

  • 26 Nov 2013 9:38 AM | Michelle Barrus (Administrator)

    Defense Expert Disclosures in Personal Injury Cases After Harris v. ShopKo

    By Tyler V. Snow

    November 25, 2013

    I.          Harris I and the “asymptomatic on the date of the accident” standard with respect to preexisting conditions

                In September 2011, the Utah Court of Appeals released its opinion in Harris v. ShopKo, 2011 UT App 329, 263 P.3d 1184 (Harris I), a case that was troubling to many in the Utah defense community.  As summarized by the Utah Supreme Court in Harris v. ShopKo, 2013 UT 34, 308 P.3d 449 (Harris II), in Harris I the Utah Court of Appeals had held that, “because Ms. Harris’s preexisting conditions were asymptomatic on the date of the accident, ShopKo was not entitled to a jury instruction permitting the jury to allocate some portion of the damages to Ms. Harris’s preexisting conditions.”  Harris II, 2013 UT 34, ¶ 2 (emphasis added).  

    Short of an admission by a plaintiff, defense counsel is rarely, if ever, able to turn up evidence that the plaintiff’s preexisting conditions were symptomatic “on the date of the accident.”  The court’s holding in Harris I effectively meant that defendants could no longer apportion at least some of a plaintiff’s injuries to his or her preexisting conditions.

    II.        Harris II and the defense’s burden of establishing that a plaintiff’s injuries can be apportioned between preexisting conditions and the accident

                Fortunately, in June 2013 the Utah Supreme Court issued its opinion in Harris II and restored balance to this issue of apportioning damages.  The court rejected what it termed the “narrow, bright-line approach” and “the wrong legal standard” that had been applied by the Utah Court of Appeals in Harris IHarris II, 2013 UT 34, ¶¶ 17, 22. 

    Instead, the Utah Supreme Court reviewed its prior holdings and stated that “[t]hese cases highlight the fundamental aim in deciding damages: ‘to restore the injured party to the position he would have been in had it not been for the wrong of the other party.’”  Id. ¶ 25 (quoting Park v. Moorman Mfg. Co., 241 P.2d 914, 920 (Utah 1952)).  “Proximate cause plays a central role in determining the precise extent of . . . what the plaintiff’s position would have been absent the defendant’s negligence.”  Id. (citations omitted).  Concluding the thought, the court stated that “[a]n asymptomatic preexisting condition may well be an independent contributor to a plaintiff’s pain and injury, which was also proximately caused to some degree by a tortfeasor’s negligence.”  Id. ¶ 26 (citations omitted).

                The court acknowledged that apportioning damages between preexisting conditions on the one hand and accident-related injuries on the other can be difficultundefinedfor parties and jurors.  Id. ¶¶ 27-28.  However, noting that defendants bear the burden of uncertainty in the amount of a plaintiff’s damages, the court held that defendants have the burden to establish that apportionment is possible where there is any uncertainty.  Id. ¶ 28. 

    Continuing, the court stated that “expert testimony may be the jury’s only guide as to whether apportionment is proper and, if so, to what extent.”  Id. ¶ 34 (noting that “the average lay juror is ill-equipped to sift through complicated medical evidence and come to a nonspeculative apportionment decision”).  While an expert need not arrive at exact percentages in opining as to apportionment, the expert should “present[] a reasonable range of percentages . . . or a useful nonnumeric description.”  Id. ¶ 38.  “The determinative question is whether the expert testimony has supplied the jury with a nonarbitrary basis for apportioning damages.”  Id.

    Model Utah Jury Instruction CV2018 (9/2013) sums up defendant’s burden as set forth in Harris II as follows: “[Name of defendant] has the burden to prove what portion of the [specific harm] to [name of plaintiff] was caused by the pre-existing condition.”  If the jury is unable to make this apportionment, the jury “must conclude that the entire [specific harm] to [name of plaintiff] was caused by [name of defendant]’s fault.”  MUJI 2d CV2018.

    III.       Expert disclosures under the “new” Utah Rules of Civil Procedure after Harris II

                The holding in Harris II, in connection with the “new” Utah Rule of Civil Procedure 26, carries significant implications for defendants.  Rule 26 provides that “[t]he party who bears the burden of proof on the issue for which expert testimony is offered shall serve on the other parties the information required by paragraph (a)(4)(A) within seven days after the close of fact discovery.”  Utah R. Civ. P. 26(a)(4)(C)(i) (2013) (emphasis added). 

    As expressed above, Harris II imposes on defendants the burden of establishing, by expert testimony, that apportionment is possible between a plaintiff’s preexisting condition and his or her accident-related injuries.  Because defendants bear the burden on this issue, Rule 26 requires defendants to designate such experts “seven days after the close of fact discovery”undefinedi.e., at the same time plaintiff is required to designate his or experts.  Id. 

    Under the “old” Rules of Civil Procedure, defense experts were commonly used to rebut the medical causation opinions set forth in the plaintiff’s damages expert reports.  To avoid any issues, however, defendants should now designate their medical causation experts at the same time that the plaintiff designates his or her experts, i.e., “seven days after the close of fact discovery.”  Id.  The plaintiff then has seven days to elect whether to receive a report or a deposition from the defense experts, to be provided within 28 days of the election.  Id.

                The advisory committee note related to the new Rule 26 indicates that the changes to the rule “seek to remedy” the “ever-increasing component of discovery cost.”  See Utah R. Civ. P. 26 adv. comm. note.  Ironically, however, the holding of Harris II in connection with the new Rule 26 may actually result in increased discovery costs.  Prior to adoption of the new rules, the parties often tried to mediate a case after defendants received the plaintiff’s expert disclosures and before defendants produced their expert disclosures.  Now, absent a stipulation to the contrary, defendants will be required to produce expert reports or depositions on the issue of medical causation at the same time that the plaintiff’s expert report or deposition is due.  Thus, at least on the defense side, parties may find that expert discovery is more costly now than it was prior to the adoption of the new rules.

  • 24 May 2013 3:22 PM | Michelle Barrus (Administrator)
    The UDLA would like to thank all of our members who participated in the May 10 Annual Meeting in downtown Salt Lake City.  We enjoyed CLE presentations from a nationally-recognized speaker and from many of our own great Utah attorneys and judges.  We want to thank everyone who put so much time and effort into making this year's annual meeting a great success.

    At each annual conference, we take the opportunity to recognize a few of our members who exemplify the highest standards of professionalism and excellence.  The 2013 Legacy Award was presented to Baird Morgan of Richards Brandt Miller & Nelson.  The recipient of the 2013 Horizon Award was Scott Powers of Snow Christensen & Martineau (presented at the CLE seminar on April 26, 2013).  We are privileged to count these fine attorneys among our colleagues, and we appreciate their tremendous contributions to the defense bar and the community.

    Legacy Award Winner Baird Morgan

    Horizon Award Winner Scott Powers

    The UDLA embraces the goal of assisting each member in the development of a successful and rewarding defense practice.  We appreciate the ongoing support of our members as we work together to achieve that goal.
  • 11 Dec 2012 10:16 AM | Lloyd R. Jones (Administrator)

    If anyone is receiving push back from Plaintiff's counsel on whether Defendants have a right to ask for arbitration under the UM/UIM statutes, I received a very favorable decision from Judge Hadley in the 2nd District in which he stated that the clear language of the statute provided that either party to the insurance contract could demand arbitration, if it was allowed in the policy.  This is up on appeal, but my case is being referred to the Court of Appeals mediation, so it may not continue.  However, I feel that this issue is going to be something that is going to be addressed ultimately on appeal.  We need to make sure we are ready to address it and the legislative history that spawned the UM/UIM statutory provisions regarding the choice of arbitration and trial.


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