Utah Law Updates

Espenschied Transp. Corp. v. Fleetwood Servs., Inc. 2018 UT 32 (July 5, 2018)

The supreme court affirmed the district court’s decision not to extend Ammermam II to brokers and insurance agents in a wrongful death suit when, as part of a settlement, a trucking company agreed to take action against its insurance agent. The court granted defendant’s motion for summary judgment holding that Espenschied had suffered no actual damages as it had been indemnified for almost all of its attorney fees and had never paid any money as a result of the settlement or the consent judgment.

Mower v. Baird, 2018 UT 29 (July 5, 2018)

While being treated by a therapist, a child brought false allegations of sexual abuse against his father. The child’s father brought action against the therapist for medical malpractice and negligence, alleging that the therapist’s use of unreliable treatment methods was the cause of the false allegations. The district court determined that the therapist owed no duty to the father i.e. a non-patient; however, the supreme court reversed and remanded the district court’s decision holding that the therapist of a minor does owe a duty to a non-patient parent to refrain from affirmatively acting in a manner that causes physical harm to the non-patient or that gives rise to false memories or fabricated allegations of sexual abuse.

Krahenbuhl v. The Cottle Firm, 2018 UT App 138 (July 12, 2018)

In this legal malpractice claim, the court rejected the defendants’ argument that privilege with respect to all lawyers who represented an individual in an underlying case is waived when a legal malpractice claim is filed against one lawyer. The defendants, in this case, issued a subpoena duces tecum to the new counsel retained by plaintiffs in order to continue the underlying case with representation. Plaintiffs filed an interlocutory appeal of the district court’s denial of their objection to the subpoena duces tecum, and the court of appeals agreed with the plaintiffs determining that the subpoena was in violation of the attorney-client privilege and reversing the district court’s decision. The court held that plaintiffs were “not seeking damages that occurred outside of Prior Counsel’s representation and therefore have not placed at issue their communications with Successor Counsel”; rather it was the defendants’ defense that placed the prior communications at issue.

Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36 (July 26, 2018)

In this action, plaintiff sued her attorneys for legal malpractice when they failed to file her claim before the statute of limitation had run and then did not disclose said failure for ten months. The jury awarded plaintiff $2.75 million in non-economic damages for the emotional distress that arose from the malpractice. The supreme court vacated and remanded for new trial holding that damages for emotional distress cannot be collected under a breach of contract claim because neither the nature nor the language of the contract indicated that emotional distress damages were contemplated by either party.

Nat’l Title Agency LLC v. JPMorgan Chase Bank NA, 2018 Ut App 145 (July 27, 2018)

In this case, plaintiffs sued a bank for releasing funds in escrow to its clients (to whom the funds belonged) in order to satisfy judgments against the plaintiff in two unrelated suits. The district court found these claims to be time-barred by the statute of limitations. Plaintiffs appealed and argued that they were seeking special or consequential damages for harms later stemming from the loss of those funds and not the recovery of the original funds; however, the court found this argument unavailing and held that “the statutes of limitations started to run in 2010 when Plaintiffs sustained the loss of the escrowed funds for which they were responsible—not in 2013 when aspects of their claimed special or consequential damages at last came to fruition.”

Vander Veur v. Groove Entm’t Techs., 2018 UT App 148 (Aug. 9, 2018)

In this case, a sales representative, who was an at-will employee, brought an action against its former employer for wrongful termination. Plaintiff argued a breach of implied covenant of good faith and fair dealing when his employer fired him in order to avoid paying bonuses and commissions that had already been earned. The court ultimately concluded that “breach of the implied covenant of good faith and fair dealing may be asserted for the limited purpose of protecting from opportunistic interference an employee’s justified expectations in receiving the fruits of a compensation agreement attendant to the at-will employment relationship after that relationship has been terminated.” However, the court also clarified that, “The implied covenant may not be used as an avenue to avoid termination of the at-will employment relationship itself.”

Judd v. Bowen, 2018 UT 47 (Aug. 29, 2018)

After exercising its certiorari authority, the court determined, upon briefing and oral argument, that the case was not suitable for certiorari review. The court noted that the criteria for certiorari established in Utah R. App. P. 46 were absent and that certiorari had been improvidently granted. In discussing the basis for certiorari review, the court “encourage[d] future parties to keep in mind the guidelines we have set out in this opinion as they prepare their petitions for certiorari.”

Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56 (Sept. 27, 2018) (amended opinion)

In this action, the district court certified its orders regarding some, but not all, claims as final and appealable; however, the supreme court held that the district court’s certification of orders as final and appealable is not sufficient to provide appellate jurisdiction. The court determined that in order for appellate jurisdiction to exist under Rule 54(b), the certified order must “detail the lack of factual overlap between the certified and remaining claims,” “express determination that there is no just reason for delay,” “set forth clear rationale as to why there is no just reason,” and offer analysis supporting its determination.

Application of Arizona Governmental Immunity in Utah


In a recent Utah County District Court Decision, the Court applied provisions of the Arizona Governmental Immunity Act under the judicial doctrine of comity to a Utah case. In that case, the City of Flagstaff, Arizona, sent a city employee to Utah. While acting within the course of her employment, the city employee was involved in a traffic accident, causing injuries to a Utah citizen. In Utah, a “Notice of Claim” must be served with the municipality within 365 days of the accident before suit can be filed against the municipality or its employees. However, under Arizona law, the Notice of Claim must be filed within 180 days.

The Utah citizen (the Plaintiff) served her Notice of Claim on the City of Flagstaff 364 days after the underlying incident. The Plaintiff further submitted her notice of claim on an official City of Flagstaff Notice of Claim form which expressly states directly beneath the signature line that, "In order for a claim to be valid, you must fully and completely comply with A.R.S. §12-821, et seq. Please understand that A.RS. §12-821 requires the claim be filed with the City of Flagstaff within 180 days after the cause of action accrues."

Because Utah requires strict compliance with the Governmental Immunity Act and all notice of claim requirements when filing suit against a governmental entity, we filed a Motion to Dismiss for Failure to State a Claim and requested the court to extend the doctrine of judicial comity and apply the Arizona notice of claim requirements to bar suit.

Out of courtesy and respect for our sister state, Judge Taylor of the Fourth Judicial District Court of Utah exercised his discretion to extend comity and give full faith and credit to the sovereign State of Arizona’s 180-day notice of claim requirement. The court noted that:

The public policy evoked in both the Utah and the Arizona statute is that suit against the state is limited by the extent of the consent of the state to be sued. That policy results in a short 356 day window for suit in Utah and an even shorter 180 day suit in Arizona. There is no reason to think that Utah, in creating such a window of opportunity for suit against the State of Utah intended to also allow suits against a sister state within the same window. Indeed if this Court were to allow a suit which would be prohibited in Arizona to be pursued in Utah it would contradict the plainly expressed public policy of that state. The doctrine of judicial comity is an evocation of respect for the law and public policy of another court. The doctrine would require this Court to defer to the decision made by the State of Arizona regarding a waiver of immunity from suit as a matter of courtesy.

The case is currently on appeal to the Utah Court of Appeals.

PCK's New Partner

Kirsten Ashton is Plant Christensen & Kanell's Newest Partner


Kirsten S. Ashton, who has been with Plant Christensen & Kanell since 2013, is now a partner. Ms. Ashton has demonstrated an unmatched work ethic and attention to detail that has distinguished her as one of the firm's greatest assets.

In addition to general litigation and motion practice, Ms. Ashton's practice areas include insurance defense, construction and construction defect, personal injury, auto liability, and slip and fall. Ms. Ashton is a successful litigator with numerous victories, both in the courtroom and in motions, settlements, arbitrations, and mediations. She is also licensed to practice in both Utah and Nevada. 

Please join us in welcoming Ms. Ashton as the firm's newest shareholder. 

Happy Holidays

Happy Holidays from all of us at Plant Christensen & Kanell. 

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Plant Christensen & Kanell has had an eventful year. We argued in the district courts (both state and federal), the Utah Court of Appeals, the Utah Supreme Court, and the 10th Circuit Court of Appeals. Our victory in the Utah Supreme Court provided new insights into insurance defense law, and our victory in the Utah Court of Appeals illuminated the duties of municipalities. We won several summary judgments and successfully settled several major plaintiff's cases. We also hired a new attorney as well as a new law clerk, Connor Plant.

Our new attorney, Chaunceton Bird, has been tapped to work as a law clerk on the Utah Supreme Court. His clerkship starts at the end of this month, and will likely last twelve to fifteen months. Judicial law clerk positions are highly competitive and awarded based on strong academic credentials and shrewd analytical skills. Having one of our own hired as a law clerk demonstrates that PCK hires the same caliber of candidate as Utah's highest court, and that we value strong research and writing skills. We wish Chaunceton the best of luck in his clerkship. 

Plant Christensen & Kanell looks forward to 2018 as another progressive year for our law firm. We are grateful for our clients, both old and new. Happy Holidays. 

PCK's New Attorney

We have hired a new associate attorney.

And that attorney is me. I could write this update in third-person, saying things like, "Plant Christensen & Kanell is proud to announce that it has hired Chaunceton Bird as an associate attorney," but writing about myself in third-person would only propagate the pretentious reputation lawyers often deserve. Plus, I wouldn't want to step on Bob Dole's toes. 

After working as a law clerk for Plant Christensen & Kanell for two years during law school, I have been hired as an associate attorney. Having recently been sworn in to practice in all Utah Courts, the title is now official. I will be working in the same areas of practice that I worked in as a law clerk; namely, civil litigation—spanning from contract drafting to personal injury. I am also involved in much of the firm's insurance defense work, and regularly draft pleadings in plaintiffs' cases.  

As a result of this new hiring, PCK now has eleven attorneys, six of which are partners, with the other five being associates. The law firm also has one receptionist, eight legal assistants, and an office manager. 

PCK has grown in recent years, but has, for the most part of its over-one-hundred-year-history, maintained from ten to fifteen attorneys. The small firm size is ideal for clients who want specialized service, ease of communication, and valued input. The firm will likely continue to grow and contract over the years in its continued effort to provide clients an ideal balance of seasoned experience, and newly-trained wit.

I am happy to be counted among the ranks of PCK's attorneys, and I look forward to a successful career with the firm.  


The Importance of Proper Will Drafting

A properly drafted will can be the difference between a smoothly probated estate and over twenty years of litigation.

The Utah Supreme Court recently published its opinion in In re Est. of Womack where it decided on an issue that was raised in an estate that was settled twenty-two years ago. In Womack, Mr. Gordon Womack executed a will leaving his oil, gas, and mineral rights to his three children. His will specified that the children were to hold the rights in a life estate — which means that their rights in the land will terminate upon their death (i.e., at their death they cannot give their right to the land to their heirs) — with the children's children (Mr. Womack's grandchildren) receiving the oil, gas, and mineral rights upon the death of their parents (Mr. Womack's three children). 

Mr. Womack died in May of 1989, and his estate was formerly probated the next month. The district court entered an estate-closing order in 1990. However, on June 3, 1991, the district court reopened the estate to determine whether the children (the "life tenants") or the grandchildren (the "remaindermen") had the rights to the interest earned by the oil, gas, and mineral rights. The district court entered its order and closed the estate in July of 1992. Then, over twenty years later in 2014, one of Mr. Womack's children asked the courts to reopen the estate and determine whether he, as one of Mr. Womack's children with a life estate, could receive "all the rents, royalties, bonuses and other income from production of . . . minerals during their lifetime." In re Est. of Womack, 2017 UT 35,  ¶ 5. The other two children opposed the reopening of the estate, arguing that the 1992 order was final, and that the courts should not reopen the estate to determine the alleged ambiguity two decades later. 

Ultimately the case came down to whether the child seeking to reopen the estate was within the statute of limitations for doing so. Having found that he was most certainly not, the Utah Supreme Court refused to reach the merits of his claim and affirmed the Utah Court of Appeals, which had held that the child's claim was barred by the applicable statute of limitations.

This drawn out, three-year, litigation arising over twenty years after the settlement of the estate is emblematic of the importance of proper will drafting. This controversy took root in a will that was professionally drafted, then interpreted by the court. Even then, as Mr. Womack's child argued, there remained some ambiguity. When individuals attempt to draft their own wills, the problems compound and generations of heirs are left to litigate their differences in opinion. So, when it comes time to draft your will, do it right. Meet with the attorneys at Plant Christensen & Kanell and get the help of expert lawyers. The most important element of any will is demonstrating the intent of the creator. But without the use of specific legal jargon, a will creates confusion in its interpretation, and division in a family left to hash it out over property disputes for decades to come.



The Value of Proper Construction Contract Drafting

Plant Christensen & Kanell recently defeated a subrogation claim of over $500,000, demonstrating the value and necessity of properly drafted subrogation waivers in construction contracts.

Plant Christensen and Kanell (PCK) recently represented a contractor whose contract became a pivotal element of a lawsuit against the contractor. The contractor was hired by homeowners to remodel their home. The contractor and the owners entered into a contract that detailed the owner's and the contractor's responsibilities. One of the owners' responsibilities was to provide property insurance for the work at the site. The contract also contained a subrogation waiver, waving each of the parties' rights against the other to the extent the damages were covered by insurance. The contractor then began the remodeling.

Then the house burned down.

The owners made a claim to their pre-existing homeowners insurer, who paid policy limits for the damages caused by the fire. The owners' insurer then brought a subrogation action action against the contractor, claiming the contractor caused the fire. The owners' insurer brought a subrogation action for the money the insurer paid on the homeowners' insurance claim. "Subrogation" is "a doctrine conceived in equity that allows a person or entity that pays the loss or satisfied the claim of another under a legally cognizable obligation or interest to step into the shoes of the other person and assert that person's rights." Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 22, 52 P.3d 1179, 1185 (internal quotation marks omitted) (citations omitted). Although, subrogation rights are based in equity, they may be modified by contract. See Wasatch Bank of Pleasant Grove v. Sur. Ins. Co. of California, 703 P.2d 298, 300 (Utah 1985). "Accordingly, an insured can generally waive an insurer's subrogation rights against a particular third party through a pre-loss agreement with that third party in which the insured agrees to exculpate the third party from any liability for which the insurer may seek subrogation." 52 P.3d at 1186. Which is what occurred here when the homeowner and the contractor entered into their contract.

The contractor's liability insurer hired Plant Christensen & Kanell to defend the contractor against the homeowners' insurer's subrogation action. PCK immediately sought to have the subrogation claim dismissed based on the subrogation waiver in the contract. PCK argued to the court that the insurer had no right to bring a claim in the first place because the owners had waived any subrogation rights.

By arguing that the subrogation waiver was broad enough to include the owner's insurer, PCK persuaded the court to rule in favor of the contractor, and was awarded summary judgment against the owner's insurer. This successful defense saved the contractor from potential damages of over $500,000. This illustrates the immense importance of subrogation waivers in construction contracts. While PCK was eventually able to obtain summary judgment, the case was made more difficult by ambiguities in the subrogation waiver.

At Plant Christensen & Kanell, the firm's attorneys are experienced in litigating subrogation waivers and know many of the pit-falls that can occur by using many of the do-it-yourself contracts, or even well-respected form contracts. Contractors should have their contracts drafted and reviewed by experience attorneys, like those at PCK. PCK can provide a review of contractors' contracts to ensure that the subrogation waivers are drafted broadly enough to avoid litigation. Before your next project, contact PCK for a review of your contract so you can be protected and the project can be completed with minimal interruption.

Utah's Statutes of Limitations

If you have suffered damages and are considering bringing a case in Utah's Courts, you should know about these limitations periods.

Almost every potential lawsuit has an expiration date. The courts want to be sure litigants are bringing their cases in a timely manner so that evidence is still available, and so that all parties associated with the incident can rest easy after a certain amount of time. These expiration dates are called "limitations periods." After a certain period of time, a people are limited in their ability to bring a lawsuit. The limitation periods are set by certain statutes, statutes that set these time limits are referred to as "statutes of limitations." The statutory period in which to bring any given suit depends on the type of lawsuit. For example, if you have received a personal injury in a car accident, you have a four year limitation period in which to bring your lawsuit against them, per Utah Code Section 78B-2-307. But if you suffered only property damage, you only have three years to bring you claim. Here are common statutory limitation periods in Utah:


Personal Property Damage: 3 Years. Utah Code Ann. § 78B-2-305(1) (West 2016).

Trespass: 3 Years. Id. § 78B-2-305(1).

Personal Injury and Death: 4 Years. Id. § 78B-2-307(3).

Action Against Police Officer or Other Public Official: 2 Years. § 78B-2-304.

Action Against the State or State Employees: 2 Years. § 78B-2-304.

Wrongful Death: 2 Years. Id. § 78B-2-304.

Medical Malpractice: 2 Years. Id. §§ 78B-2-304(2), 78B-3-404.

Breach of Written Contract: 6 Years. Id. § 78B-2-309(2).

Breach of Oral Contract: 4 Years. Id. § 78B-2-307(1)(a).

Breach of Contract for the Sale of Goods: 4 YearsId. § 70A-2-725.

Breach of Warranty, Personal Injury: 4 Years. Id. § 78B-2-307(3).

Product Liability, Personal Injury: 2 Years. Id. § 78B-6-706.

Product Liability, Property Damage: 2 Years. Id. § 78B-6-706.


This list reports the limitations contained in Utah's code, and is not meant to be a substitute for legal advice. If you are considering filing a lawsuit, please contact our attorneys today to discuss potential representation.

PCK's 2017 Utah Legal Elite

Three of Plant Christensen & Kanell's attorneys are listed by Utah Business as Utah Legal Elite.

Each year, Utah Business lists the top lawyers in the state, as voted by their peers. Lawyers are listed in 26 categories, ranging from arbitration to worker's compensation. There is no way to buy placement on this list. Utah Business receives thousands of votes each year, and this year three of PCK's attorneys were voted as Utah's legal Elite.

John Braithwaite has been voted as one of Utah's top construction attorneys for the eighth time. Mr. Braithwaite was first voted onto the list in 2009, and has been consecutively ranked as one of Utah's Legal Elite since 2011. Mr. Braithwaite represents and counsels architects, engineers, surveyors, general contractors, and subcontractors in design/construction contracts, risk management, alternative dispute resolution, and litigation. This work has included representation of design professionals on many significant construction projects and cases in the state of Utah, including claims involving structural failures, geotechnical problems, shoring failures, delay claims, and other alleged design errors.

Daniel Young and Joel Taylor were also voted as two of Utah's Legal Elite, with both of them being listed as elite up and coming attorneys ("up and coming" referring to attorneys who have been practicing for less than eight years). Both Mr. Young and Mr. Taylor's practice areas are diverse, and specialize in insurance defense litigation. 

Plant Christensen and Kanell has a history of award winning attorneys as a result of the firm's commitment to client satisfaction and dedication to detail.

Utah Statutory Amendments Affecting Municipalities

The Utah State Legislature has introduced a bill in Utah's 2017 General Session that will impact state and local governments.

House Bill 399, Governmental Immunity Amendments, seeks to improve governmental immunity in some areas, and expand the rights of claimants in other circumstances. The long title of the bill provides that House Bill 399:

  • provides that governmental immunity is preserved for an injury arising out of or in connection with, or resulting from, certain conduct or conditions even if immunity would otherwise be waived;

  • enacts language specifying the relationship between an injury and certain conduct or conditions in determining whether immunity applies;

  • allows a claimant to begin an action after the applicable time limit if a previous timely action failed or was dismissed, other than on the merits, and other conditions are met; and

  • modifies language relating to a plaintiff's undertaking in an action against a governmental entity.

If you or someone you know is a state or municipal agent or employee, give our municipal law attorneys a call to see how these changes affect your liability. The basic underpinnings of governmental immunity continue to apply (which is to say that government actors cannot be sued personally for actions they took as part of their government position). But these changes will impact when claimants can bring lawsuits, and in what circumstances state or municipal agents can defend themselves.

Click here to view the bill in its entirety.

PCK's Local, Experienced, Specialized Lawyers

Whether you're looking local or national, Plant Christensen & Kanell's attorneys will provide professional competence and dedicated service to your legal issue.

Plant Christensen & Kanell has been in the legal industry long enough to garner the patronage of Utah's top insurance providers and prominent businesses, but many of the law firm's clients are local individuals with first-time legal issues. From long-term to first-time, the firm works with clients with a variety of experience working with lawyers.

PCK's practice areas span from auto accidents and personal injury to insurance litigation and workers compensation, and most areas in between. The attorneys at Plant Christensen & Kanell have developed a broad range of specialized expertise, and the firm's collaborative environment ensures that every case is handled with an eye toward developing new insights and discovering nuanced detail.

So if you have recently found yourself Googling "lawyer near me," give us a call. We are the lawyers near you that are excited to get to work. Contact us today to discuss representation for your legal issue.

Plant Christensen & Kanell's Latest Publication

An article written by Plant Christensen & Kanell's law clerk (yours truly) was selected for publication by the Utah Law Review.

The article is titled "Growth and Legal Implications of Energy Storage Technologies." Here is a link to the article: http://dc.law.utah.edu/onlaw/vol2017/iss1/3/.

As stated in the abstract, the energy storage industry is growing at burgeoning rates and new technologies are lowering the cost and improving the efficiency of energy storage devices. But with widespread adoption comes a myriad of legal issues. When states are creating their own legal frameworks to encourage or discourage investment in energy storage, the industry is hampered by inconsistency and a lack of predictability. By implementing broad federal regulations, the federal government can remove uncertainty and encourage growth and development of energy storage technologies. Thanks to companies like Tesla who are making energy storage more appealing and affordable, demand for behind-the-meter energy storage is increasing. The world is at the cusp of an energy storage revolution, and the United States has an opportunity to lead in that revolution by passing legislation that spurs on the rapid growth of energy storage.

Here at Plant Christensen & Kanell our attorneys and staff recognize the value of contributing to the development of the law; whether that be through litigating cases, or publishing academic articles.

The Colorado River Doctrine

The Colorado River Doctrine provides a means for courts to avoid trying the same case in two separate courts simultaneously.

Occasionally, litigants will bring a case in both the federal court system and the state court system. The reasons for doing so are usually strategic based on the judges and jurisdictions in the federal and state system. In those instances, federal courts have found that when the simultaneous litigation of the claims would be duplicative or otherwise inefficient they may stay the action pending the outcome of the state court case. This principle has come to be known as the Colorado River Doctrine. 

The Colorado River doctrine allows a federal court to dismiss or stay a federal action in deference to pending parallel state court proceedings, based on “considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (citation omitted) (internal quotation marks omitted); see also Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999) (“In other words, the Colorado River Doctrine was adopted to avoid duplicative litigation.”).

To determine whether to dismiss or stay a federal court action based on a parallel state court case, courts consider the following factors: “(1) whether either court has assumed jurisdiction over property; (2) whether the federal forum is inconvenient;[1] (3) the avoidance of piecemeal litigation; (4) the order in which the courts obtained jurisdiction and the progress of the two cases; (5) which forum’s substantive law governs the merits of the litigation; and (6) the adequacy of the state forum to protect the rights of the parties.[2]Health Care & Ret. Corp. of Am. v. Heartland Home Care, Inc., 324 F. Supp. 2d 1202 (D. Kan. 2004) (footnotes added) (citing Colorado River, 424 U.S. at 819; Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 23 (1983)).

These factors are “to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand.” Moses H. Cone, 460 U.S. at 21.But before applying the Colorado River factors, the court must first determine “whether the state and federal proceedings are parallel.” Allen v. Bd. of Educ., Unified Sch. Dist. No. 436, 68 F.3d 401, 402 (10th Cir. 1995).

For example, in Heartland, Health Care and Retirement Corporation of America (“HCRCA”) filed suit against Heartland Home Care, Inc., (“Heartland”) for trademark infringement, false designation of origin, and trademark dilution under the Lanham Act. 324 F. Supp. 2d at 1203. HCRCA’s claims in the federal court came after Heartland had filed claims against HCRCA in the state district court, alleging that HCRCA was soliciting business under Heartland’s name in violation of Kansas law. Id. When HCRCA filed its claims in federal court, Heartland sought dismissal under the Colorado River doctrine based on the previously filed—and then-pending—state court action. Id. at 1204.

The Heartland court first looked to whether the two cases were sufficiently parallel by looking to the nature of the parties. Id. The court held that the parties in the state and federal cases were substantially the same, even though HCRCA’s “affiliate” and not HCRCA itself was a party in the state case. Id. HCRCA’s affiliate was arguing the same claims, was represented by the same law firm, and shared the same interests as HCRCA. Id. The court then looked to the nature of the issues. Id. at 1205. It held that although the pending claims in the state court were not the same as the pending issues in the federal court, they were substantially similar because the issues both arose out of the same set of facts. Id. Accordingly, the court held, the cases were sufficiently similar to apply the Colorado River doctrine, and applied each of the doctrine’s six factors. Id. at 1205–08.

The court determined that neither of the first two factors weighed in favor of either party. Id. at 1205–06. Then, turning to the third factor (avoidance of piecemeal litigation), the court noted that: the parties “currently are litigating virtually identical . . . claims in two courts;” inconsistent results were possible; and “if the state court enters a judgment before one is entered in the federal case, the federal action likely will be barred under res judicata principles.” Id. at 1206. Accordingly, the court held, “[a]llowing both cases to proceed to a race to judgment would cause duplicative litigation and waste the resources of the parties and the Court. Judicial economy is best promoted by staying the instant action.” Id. at 1206.

Turning to the fourth factor, the court held that because the state action had been filed some three months before the federal action, this factor also weighed in favor of staying the federal action. Id. The fifth factor weighed slightly in favor of not staying the action, because federal law governed both actions. Id. at 1207.  After considerable analysis of the sixth factor, the court held that the state forum was an adequate vehicle to protect the parties. Id. at 1207–08. After a holistic balancing of all the factors, the court concluded: “Three of the above factors favor staying the case, two factors are neutral and one factor slightly favors retaining the case. After carefully considering each factor, the Court finds that exceptional circumstances justify a stay of the instant action.” Id. at 1208.[3]

In conclusion, bringing a case in both the state and federal court systems may be a wise course of action for your case, but be prepared to have the federal case stayed if the court deems that such a stay would be in the best interest of judicial economy.

The  Colorado River  Doctrine bears no relation to its namesake, the Colorado River.

The Colorado River Doctrine bears no relation to its namesake, the Colorado River.



[1] “Whether the federal forum is inconvenient depends on the ‘physical proximity of the federal forum to the evidence and witnesses.’” Health Care & Ret. Corp. of Am. v. Heartland Home Care, Inc., 324 F. Supp. 2d 1202, 1206 (D. Kan. 2004) (citing Am. Bankers Ins. Co. v. First State Ins. Co., 891 F.2d 882, 885 (11th Cir.1990).

[2] The Court may enter a stay under the Colorado River doctrine only if it has “full confidence” that the parallel state litigation will end the parties’ dispute. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 277 (1988).

[3] Heartland is one of several 10th Circuit decisions to apply, or uphold the application of, the Colorado River doctrine to stay a federal proceeding. E.g., Nationwide Mut. Ins. Co. v. C.R. Gurule, Inc., 148 F. Supp. 3d 1206 (D.N.M. 2015);  D.A. Osguthorpe Family P’ship v. ASC Utah, Inc., 705 F.3d 1223 (10th Cir. 2013); Foxfield Villa Assocs., LLC v. Regnier, 918 F. Supp. 2d 1192 (D. Kan. 2013); Big O Tires, LLC v. Felix Bros., No. 10-CV-00362-PAB-KLM, 2011 WL 6181448 (D. Colo. Dec. 13, 2011); Gray v. Parry, No. 2:07-CV-113, 2008 WL 821592 (D. Utah Mar. 27, 2008); Robertson v. Red Rock Canyon Sch., LLC, No. 2:05-CV-758 TC, 2006 WL 3041469 (D. Utah Oct. 24, 2006); Blue Rhino Corp. v. Stockgrowers State Bank of Ashland, Kansas, 220 F.R.D. 369 (D. Kan. 2004); Fox v. Maulding, 16 F.3d 1079 (10th Cir. 1994).

Changes to the Utah Rules of Civil Procedure

The Utah Supreme Court has approved amendments to the Utah Rules of Civil Procedure. The amendments are effective May 1, 2017.

Rule 7 | Pleadings allowed; motions, memoranda, hearings, orders.

  • Addition of section “(q),” which places two new limits on applications for an order to show cause: (1) the application “shall be made only for enforcement of an existing order or for sanctions for violating an existing order;” and (2) the application must be supported by an affidavit.

o   The addition, in its entirety, is here:

(q) Limit on order to show cause. An application to the court for an order to show cause shall be made only for enforcement of an existing order or for sanctions for violating an existing order. An application for an order to show cause must be supported by an affidavit sufficient to show cause to believe a party has violated a court order. Nothing in this rule is intended to limit or alter the inherent power of the court to initiate order to show cause proceedings to assess whether cases should be dismissed for failure to prosecute or to otherwise manage the court’s docket.

  • Additionally, there is a new Advisory Committee Note, which provides:

The 2017 amendments to Rule 7 return pre-2015 paragraph (b)(2) language addressing limits on orders to show cause to new paragraph (q) and also clarify the discretion the court retains to manage its docket. Paragraph (q) is directed only at limitations on order to show cause proceedings initiated by parties.

 Rule 35 | Physical and Mental Examination of Persons

  • The 2017 amendments to Rule 35 clarify when there is overlap between a Rule 26(a)(4) expert report and when there is not. They also provide the shorter of a 60-day time frame or 7 days prior to the close of fact discovery in which the party requesting the Rule 35 examination must disclose the report to the person being examined.
  • If the party requesting the exam wishes to call the examiner as an expert witness, the party must disclose the examiner as an expert within the time prescribed in Rule 26(a)(4), but need not provide an additional report if the report provides all the information required in 26(a)(4).
  • A change to the Advisory Committee Note has removed the following sentence:

Medical examiners will be treated as other expert witnesses are treated, with the required disclosure under Rule 26 and the option of a report or a deposition.

  • The Advisory Committee Note added the following paragraph, which clarifies the intent behind the rule change:

A report must be provided for all examinations under this rule. The Rule 35 report is expected to include the same type of content and observations that would be included in a medical record generated by a competent medical professional following an examination of a patient, but need not otherwise include the matters required to be included in a Rule 26(a)(4) expert report. If the examiner is going to be called as an expert witness at trial, then the designation and disclosures under Rule 26(a)(4) are also required, and the opposing party has the option of requiring, in addition to the Rule 35(b) report, the expert’s report or deposition under Rule 26(a)(4)(C). The rule permits a party who furnishes a report under Rule 35 to include within it the expert disclosures required under Rule 26(a)(4) in order to avoid the potential need to generate a separate Rule 26 (a)(4) report later if the opposing party elects a report rather than a deposition. But submitting such a combined report will not limit the opposing party’s ability to elect a deposition if the Rule 35 examiner is designated as an expert.

Rule 45 | Subpoena

  • In conformity with Rule 84’s repeal (see below, infra), this amendment makes a technical amendment to paragraph (a)(1)(E). It also makes a technical amendment to paragraph (i) in anticipation of the prisoner mailbox rule's adoption.
  • Changes to section “(i):” instead of emphasizing actual incarceration, the changes to section “(i)” focus on the witness’s status as an inmate (e.g., “confined in jail,” has been changed to “is an inmate”).
  • See the red-lined rule here: http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2017/03/45-legislative-format.pdf

Rule 65 | Post-Conviction Relief

Rule 84 | Forms

Law School Hopefuls, Ye Be Warned

Before staring law school, consider the statistics.

Utah is home to two law schools: The University of Utah S.J. Quinney School of Law, and the Brigham Young University J. Reuben Clark Law School. Each law school produces over 100 new graduates every year. With around 250 new lawyers entering Utah's legal market every year (not counting all the attorneys that transfer into the state), attorneys in the Beehive State need to demonstrate their competency or risk relegation.

In 2015 (the most recent year with available data), 126 people graduated from the University of Utah law school; 81 men and 41 women (4 individuals did not report their gender). Within one year of graduation, 75 of those graduates had paying jobs (or 59%), with 49 of those individuals working in the private sector. The mean starting salary of those 49 private sector attorneys is $76,531. The 26 graduates employed in the public sector make less, with a mean starting salary of $52,369.

Brigham Young University law school produced 133 law school graduates in 2015, and had similar employment numbers. In the year after graduation, 52 graduates were working in a law firm, and 36 were working in the public sector. BYU law school also employs 12 of their graduates, and 20 of their graduates went to work in business or another industry. BYU does not report salary statistics (but they tell U.S. News that their mean private sector starting salary is $72,000, and their mean public sector starting salary is $49,500).

So how does Utah's 59% and BYU's 46% compare to national statistics? In 2015, 39,984 people graduated from law schools across the United States. Of those, 17,959 were working as attorneys ("Bar Passage Required"), and 2,478 were working in professions where their juris doctorate degrees gave them an "advantage." That is a 51% employment rate. The mean national private sector salary for first year associates is $105,000, and the mean public sector salary is $55,556. Although Utah's two law schools are ranked well (according to U.S. News, both schools are Tier 1 law schools, with Utah ranked at number 44 and BYU ranked at number 46 out of the 197 accredited law schools in the nation), starting private sector salaries are close to 30% less than the national average.

This translates into a competitive legal market in Utah. Attorneys in Utah recognize that sub-par work will lead to their prompt replacement, as there is no shortage of highly-trained law students waiting in the wings. And the surplus of graduating law students allows law firms to hire exclusively students from the top of their classes. So although it is a difficult time to be a law school graduate, it is an ideal time to be a client. Individuals receiving legal services can be confident that law firms in Utah are hiring the cream of the crop, and the existing attorneys in the firm have track records of legal and professional competency. 

Audio of PCK's Supreme Court Argument

Did we mention we were in the Utah Supreme Court recently?

On January 11, 2017, Joel Taylor argued in Utah's highest court on behalf of Fire Insurance Exchange. Although the Utah Supreme Court does not allow cameras in the courtroom, every oral argument is recorded and available to the public. To listen to Mr. Taylor's argument before the court, click here, then select "listen" next to "Fire Ins Exchange v. Oltmanns 20160304."

Case Anthology: Use of Indictments to Impeach a Witness

Cross examination can be a tricky business.

The Federal Rule of Evidence Rule 608(b) allows specific instances of conduct "to be inquired into if they are probative of the character for truthfulness or untruthfulness." This means that attorneys can grill witnesses about their past in an attempt to discredit their testimony. Chances are you have seen this in the last courtroom drama you watched. 

Most states (including Utah), have a virtually identical Rule 608 that allows attorneys to ask witnesses about their past. But there is a difference of opinion among the states (and circuits) about what amount of past conduct can be inquired into. Specifically, jurisdictions disagree over whether attorneys should be allows to ask the witness about pending indictments. (If the indictment has resulted in a conviction, then the conviction can be introduced through Rule 609.)

The majority of jurisdictions that have addressed the matter have concluded that indictments may not be used to impeach a witness's character for truthfulness. Utah has not addressed the issue directly, but has permitted the use of "conduct not resulting in a conviction." Robinson v. Taylor, 2015 UT 69,  16, 356 P.3d 1230, 1234. Here is how the caselaw stacks up:

Impeachments may (though the courts have not expressly stated so) be used to impeach a witness:

United States v. Staples, 410 F.3d 484, 489 (8th Cir. 2005) (acknowledging and not overturning the use of an indictment to impeach a witness); United States v. Martinez, No. 16-10062-JTM, 2016 WL 4399185, at *2 (D. Kan. Aug. 18, 2016) (recognizing in dicta, without disapproval, the government’s intent to use and indictment to impeach a witness); Robinson v. Taylor, 2015 UT 69, ¶ 16, 356 P.3d 1230, 1234 ("Conduct not resulting in a conviction may be inquired into on cross-examination under rule 608 . . . ."). But see Utah R. Evid. 608, Advisory Committee Note (stating that an "attack upon a witness's credibility by specific instances of character other than conviction of a crime is inadmissible under current Utah law") (citing Bullock v. Ungricht, 538 P.2d 190, 192 (Utah 1975)).

Impeachments may not be used to impeach a witness:

Brown v. Coating Specialists, Inc., 465 F.2d 340, 341 (5th Cir. 1972) (“[A] witness who was under indictment . . . could not be impeached by evidence of the pending indictment.”); Jenkins v. Gen. Motors Corp., 446 F.2d 377 (5th Cir. 1971), cert. denied, 405 U.S. 922 (1972); United States v. Baker, 494 F.2d 1262, 1266 (6th Cir. 1974) (a witness’ credibility generally cannot be impeached by showing arrest, indictments or other acts of misconduct not resulting in a conviction); Steinhouse v. W.C.A.B. (A.P. Green Servs.), 783 A.2d 352, 356 (Pa. Commw. Ct. 2001) (“[A]s a general rule, prior bad acts not resulting in a conviction are not admissible to impeach a witness’ credibility.”) (quoting Commonwealth v. Smith, 467 A.2d 1120, 1125–26 (Pa. 1983)); George S. May Int’l Co. v. Int’l Profit Assocs., 628 N.E.2d 647 (Ill. App. 1993) (“Specific acts of misconduct by witness not resulting in criminal conviction may not be used to impeach, including arrests, indictments, charges, or actual commissions of offenses.”) (citing Knowles v. Panopoulos, 363 N.E.2d 805, 858 (Ill. 2d 1977)); State v. Morgan, 541 S.W.2d 385, 389 (Tenn. 1976) (citing with approval cases holding that charges, accusations and indictments may not be used to impeach a witness); In re Miller, No. 16-50532, 2016 WL 7115865, at *4 (Bankr. E.D. Ky. Dec. 6, 2016) (“It is not usually permissible to impeach a witnesses' credibility through an indictment not resulting in a conviction.”); People v. Sosa, No. 2-09-0514, 2011 WL 10099324, at *4 (Ill. App. Ct. Apr. 11, 2011) (“[A]n indictment, or a complaint is not usually admissible to impeach a witness.”).

Commercial Property Owners: Clear Your Walkways and Remove Your Icicles

Operating a brick and mortar business in the winter comes with its fair share of risks. Mitigate those risks by staying on top of snow and ice removal.

Utah courts have held that "commercial property owners are not insurers of the safety of those who come upon their property, even though they are business invitees."  Martin v. Safeway Stores Inc., 565 P.2d 1139, 1140 (Utah 1977) (the liability of a business is created only when the condition complained of has existed for a long enough time that the owner should have known about it and corrected it, or has had actual knowledge of the condition complained of). However, tenants are liable "for any dangerous condition on the premises which he [or she] creates or permits to come into existence after he [or she] has taken possession.” Dahlstrom v. Nass, 2005 UT App 433, ¶ 10, 126 P.3d 773, 774 (emphasis added) (citing Stephenson v. Warner, 581 P.2d 567, 568–69 (Utah 1978).

One such dangerous condition that inevitably "comes into existence" this time of year is ice. Ice on walkways (or, in attorney jargon, paths of ingress and egress) often creates a slippery surface area. The ice alone is dangerous enough, but when the slightest bit of snow falls on the ice, the ice- and snow-covered walkway becomes slicker than an ice rink and substantially more dangerous. Patrons who slip and fall on the walkways can receive serious injuries (or death).

An equally dangerous condition this time of year is ice climbing off the edges of roofs. Icicles could fall at any time, and pose a serious threat of bodily injury. Icicles should be cleared away promptly—and carefully. The United States Department of Labor reports that there have been 16 fatalities in the last ten years from individuals clearing snow and ice from roofs.

So, if you are a business with a physical location, be sure to keep your walkways dry and your roofs clear. Investment in a snow shovel and a few bags of salt will be much less than the later cost of defense attorneys in your subsequent personal injury negligence case.

Utah's Economic Loss Rule

Utah has expressly adopted the economic loss rule.

See SME Indus., Inc. v. Thompson, Ventulett, Stainback & Associates, Inc., 2001 UT 54, ¶ 32, 28 P.3d 669 modified, Sunridge Dev. Corp. v. RB & G Eng’g, Inc., 2010 UT 6, 230 P.3d 1000.

Under the economic loss rule, a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law. Id.

In English, that means that when, say, a home buyer contracts with a builder to build a home, the home buyer’s rights to sue the builder for construction defects with the home are defined by the contract. A home buyer would not be able to bring a negligence claim against the builder, rather, the home buyer would need to bring a breach of contract claim and allege that the sub-par construction breached the home building contract.

That said, there are exceptions to the economic loss rule. One of which being for home builders. The court in W. v. Inter-Fin., Inc., 2006 UT App 222, ¶ 12, 139 P.3d 1059, 1063, noted that an exception to the economic loss rule exists if an independent duty of care exists. That is to say, special relationships like attorney-client, patient-physician, or home builder-buyer, create a duty independent of the contract that may be breached.

So in the home builder example above, a home buyer would be able to sue the builder for negligence because courts have found that home builders owe a special duty of care to home buyers. E.g. Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, 221 P.3d 234. However, the independent duty exception should not be relied on. The general rule is that when parties enter into a contract, cases arising out of what was contracted for are confined to contract actions.