STATE OF UTAH COMPENDIUM OF LAW

Transcription

1 STATE OF UTAH COMPENDIUM OF LAW Prepared by Kristin VanOrman Strong & Hanni Law Firm PC 3 Triad Center, Suite 500 Salt Lake City, UT (801) Updated 2012

2 PRE-SUIT AND INITIAL CONSIDERATIONS Courts exist to provide a decision by an agent of state power based on justice and law as opposed to merely personal concerns. Accordingly, the first step in initiating a civil action is selecting the proper court, including considerations based on: Subject Matter Jurisdiction deciding whether the desired court has the authority to hear the case. For example, some types of action have strict notice of claim requirements that are conditions precedent. Other causes of action may only be heard in federal court, which has original jurisdiction for actions involving Patents, the IRS, suits where the United States is a party, etc. 28 U.S.C.A Personal Jurisdiction Utah uses long-arm statutes to authorize its courts to exercise jurisdiction on any basis not inconsistent with the Utah or United States Constitution. UTAH CODE ANN , -25; see also Ervin v. Lowe s Co., Inc., 2005 UT App 463, 128 P.3d 11. Venue the place where a lawsuit should be heard. Then, a civil action is commenced by (1) filing a complaint with the court, or (2) by service of a summons together with a copy of the complaint. UTAH R. CIV. P. 3. Pre-Suit Notice Requirements/Prerequisites to Suit It is vital to check the governing statute to determine whether pre-suit notice of a claim is required. For example, when making a claim against any governmental entity, the plaintiff must file a Notice of Claim pursuant to UTAH CODE ANN. 63G et seq. Subsection 2 states: Any person having a claim against a governmental entity, or against its employee for an act or omission occurring during the performance of the employee's duties, within the scope of employment, or under color of authority shall file a written notice of claim with the entity before maintaining an action, regardless of whether or not the function giving rise to the claim is characterized as governmental. Relationship to the Federal Rules of Civil Procedure The Utah Rules of Civil Procedure closely follow the Federal Rules of Civil Procedure, but there are some differences. However, interpretations of the federal rules are persuasive when the state rules are substantially similar. Tucker v. State Farm Mut. Auto Ins. Co., 53 P.3d 947 (Utah 2002). Description of the Organization of the State Court System 1. How judges come to service on the bench In Utah, a Justice of the Supreme Court is initially appointed and then must be elected in the first general election held more than three years after the appointment. UTAH CODE ANN. 78A-3-101(2). Then, this Justice serves a ten year term. Court of Appeals and District Court judges are appointed and then elected in the same manner as justices except they serve six year terms. 1

3 Compare UTAH CODE ANN. 78A-3-101, with UTAH CODE ANN. 78A-4-102, and UTAH CODE ANN. 78A Names of courts what the various levels of courts are called (a) Utah Supreme Court: The Utah Supreme Court is the state s highest appellate court. UTAH CODE ANN. 78A et seq. The Court consists of five justices. In regard to tort claims, an appeal from a district court decision goes directly to the Supreme Court. The Supreme Court then decides whether to hear the appeal or transfer the case to the Utah Court of Appeals. UTAH CODE ANN. 78A-3-102(3). (b) Utah Court of Appeals: The Utah Court of Appeals consists of seven judges sitting in panels of three. UTAH CODE ANN. 78A et seq. While it does not have original appellate jurisdiction over tort claims, it receives many, if not most, tort claim appeals brought before the Utah Supreme Court and subsequently transferred the Utah Court of Appeals. UTAH CODE ANN. 78A Once a case is heard by the Utah Court of Appeals, the matter may be certified for review to the Supreme Court. UTAH CODE ANN. 78A-4-103(3). (c) District Courts: District courts have original jurisdiction over civil matters, including tort claims. UTAH CODE ANN. 78A-5-102(1). The district courts also have appellate jurisdiction to adjudicate trials de novo of judgments in small claims courts. UTAH CODE ANN. 78A (d) Juvenile Courts: The juvenile court is a court of record of equal status with the district courts of the state. UTAH CODE ANN. 78A et seq. This court may adjudicate matters that relate to minors by acting in the best interests of the minor in all cases while preserving and strengthening family ties. (e) Justice Courts: Justice courts have jurisdiction over class B and C misdemeanors, violation of ordinances, and infractions committed within their territorial jurisdiction, except those offenses over which the juvenile court has exclusive jurisdiction. UTAH CODE ANN. 78A et seq. These courts also include small claim courts. These courts are not courts of record. Small Claims Court: Small Claims Courts are designated to settle monetary legal issues and problems arising from contractual, service disputes and other claims. The maximum amount of an action in a small claims court is $7500. UTAH CODE ANN. 78A et seq. An attorney may represent a party at court. (f) United States Federal Courts: There is one federal district in Utah. Utah is in the Tenth United States Circuit. 2

4 3. Mandatory ADR (a) Arbitration The federal Arbitration Act provides that contractual arbitration clauses which are commercerelated are enforceable. UTAH R. CIV. P. 22. The Utah Arbitration Act, UTAH CODE ANN. 78B et seq., recognizes insurance policies and other contracts which require arbitration. The scope of the arbitration, rules for discovery and procedure, and types of awards may be dictated by contractual provisions. According to statute, appellate review may vacate an arbitration award only where the award resulted from fraud, arbitrator partiality or corruption, failure to consider material evidence, or where the arbitrator exceeded his or her authority or procedurally prejudiced the substantial rights of a party. Allred v. Educators Mut. Ins. Assoc. of Utah, 909 P.2d 1263, 1266 (Utah 1996); UTAH CODE ANN a-124. Case law from the United States Court of Appeals for the Tenth Circuit extends federal authority to vacate an arbitration award to cases of arbitrators' manifest disregard of the law. Kelley v. Michaels, 59 F.3d 1050, 1053 (10th Cir. 1995) (citing First Options of Chi., Inc. v. Kaplan, 115 S. Ct. 1920, 1926 (1995); see also Cohig & Assoc., Inc. v. Stamm, 1998 Colo. J. C.A.R (10th Cir. 1998) (unpublished opinion). (b) Mediation Most state court judges have been strongly encouraging that parties participate in mediation at some time before they get to trial. State judges generally have no power to order ADR. There is exception when there is a contractual agreement between the parties. Additionally, Utah has established a mandatory domestic mediation program to help reduce the time and tensions associated with obtaining a divorce. UTAH CODE ANN Further, parties to probate disputes are required to participate in ADR. Rule of Rules of Judicial Administration. Litigants in federal court can choose a litigation track or an ADR track. The federal Arbitration Act provides that contractual arbitration clauses which are commerce-related are enforceable. UTAH R. CIV. P. 22. Service of Summons A civil action is commenced in one of two ways: (1) a complaint is filed with the court; or (2) a "ten-day" summons and complaint are served upon the defendant. Under the first option, a complaint, together with the summons, must be served no later than 120 days after the filing of the complaint unless the court allows a longer period of time for good cause shown. UTAH R. CIV. P. 4(b). Under the second option, the plaintiff must file the summons, a copy of the complaint, and a proof of service with the court within ten days of having served the defendant. Otherwise the case is deemed dismissed. UTAH R. CIV. P. 3(a). The summons must state the time within which the defendant is required to answer the complaint. A resident has twenty days to answer a complaint. UTAH R. CIV. P. 12(a). A nonresident has thirty days to answer a complaint. Id.; UTAH CODE ANN

5 A counterclaim regarding a matter arising out of the transaction or occurrence that is the subject matter of the opposing party's claim should be brought at the same time the answer is filed. Utah R. CIV. P. 12(b), 13. Counterclaims arising out of the transaction or occurrence that is the subject matter of the opposing party's claim are compulsory. UTAH R. CIV. P. 13(a). A permissive counterclaim is any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. UTAH R. CIV. P. 13(b). An open extension to answer a complaint is valid and enforceable. Nevertheless, oral extensions are not advisable since a dispute between the parties may arise as to the terms of the agreement. 4. Person Unless waived in writing, service of the summons and complaint must be by personal service, service by mail or commercial courier service, or by internationally agreed means if the defendant is in a foreign country. The process may be given to the individual personally, or by leaving a copy at the individual s dwelling with some person of suitable age and discretion. UTAH R. CIV. P Public Corporation Process upon a corporation, partnership, or upon an unincorporated association which is subject to suit under a common name may be made by delivering a copy of the summons and complaint to an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service. If no officer or agent can be found and the defendant holds itself out as having a place of business within the state, then process may be left with the person in charge of such office or place of business. UTAH R. CIV. P. 4(d)(1)(E). 6. Private Corporation Process upon a corporation, partnership, or upon an unincorporated association which is subject to suit under a common name may be made by delivering a copy of the summons and complaint to an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service. If no officer or agent can be found and the defendant holds itself out as having a place of business within the state, then process may be left with the person in charge of such office or place of business. UTAH R. CIV. P. 4(d)(1)(E). 7. Waiver A plaintiff may request a defendant to waive service of a summons by mailing or delivering the request to the person upon whom service is authorized. The request should include a copy of the complaint and should allow the defendant at least twenty days to return the waiver. UTAH R. CIV. P. 4(f). See also the Notice of Lawsuit and Request for Waiver of Service of Summons set forth in the Appendix of Forms attached to the Utah Rules of Civil Procedure. 8. Other Where the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence, where service is impracticable under the 4

6 circumstances, or where there is good cause to believe that a person is avoiding service of process, the party seeking service of process may file a motion supported by affidavit requesting an order to allow service by publication. UTAH R. CIV. P. 4(d)(4). Statutes of Limitations Construction: Construction claims are governed by statutes that impose discovery rules, and care should be given to refer to specific statutory language UTAH CODE ANN. 78B Contract: (1) Oral: An action founded upon an oral contract may be commenced at any time within four (4) years after the last charge is made or the last payment is received. UTAH CODE ANN. 78B-2-307(1). (2) Written: An action may be brought within six years upon any contract, obligation, or liability founded upon an instrument in writing except upon judgment or decree of any court of the United States, or of any State or territory within the United States, which may be brought within eight (8) years. UTAH CODE ANN. 78B-2-309(2). Contribution: A defendant is not entitled to contribution from any other person. Utah law only allows a plaintiff to recover damages that is the percentage or proportion of the damages equivalent to the defendant s fault. UTAH CODE ANN. 78B-5-820(2). Employment: Employment law claims are governed by statutes that impose discovery rules, and care should be given to refer to specific statutory language. Fraud: An action based on fraud under the Uniform Fraudulent Transfer Act, Title 25 Chapter 6 of the Utah Code, may be brought at any time within four (4) years. UTAH CODE ANN. 78B-2-307(2). However, relief on the ground of fraud or mistake may be brought within three (3) years. UTAH CODE ANN. 78B-2-305(3). Governmental Entities The Governmental Immunity Act of Utah provides that a claim arises when the statute of limitations that would apply if the claim were against a private person begins to run. UTAH CODE ANN. 63G et seq. Additionally, the statute of limitations does not begin to run until a claimant knew, or with the exercise of reasonable diligence should have known: That the claimant had a claim against the governmental entity or its employee; and the identity of the governmental entity or the name of the employee. The burden to prove the exercise of reasonable diligence is upon the claimant. Thus, any person having a claim against a governmental entity, or against its employee for an act or omission occurring during the performance of the employee's duties, within the scope of employment, or under color of authority shall file a written notice of claim with the entity before maintaining an action, regardless of whether or not the function giving rise to the claim is characterized as governmental. UTAH CODE ANN. 63G et seq. 5

7 Improvements to Realty: An action by or against a provider based in contract or warranty shall be commenced within six (6) years of the date of completion of the improvement or abandonment of construction. Where an express contract or warranty establishes a different period of limitations, the action shall be initiated within that limitations period. UTAH CODE ANN. 78B-2-225(3)(a). All other actions by or against a provider shall be commenced within two (2) years from the date of discovery of a cause of action or the date upon which a cause of action should have been discovered through reasonable diligence. However, an action may not be commenced against a provider more than nine years after the completion of the improvement or abandonment of construction. UTAH CODE ANN. 78B Indemnity: An action based in contract or warranty must be brought within six (6) years of the date of completion of the improvement or abandonment of construction. UTAH CODE ANN. 78B-2-309(2). Personal Injury: Utah limits all actions not explicitly defined by statute, including personal injury, to actions brought within four (4) years. UTAH CODE ANN (3). Professional Liability: Two (2) years from the time the claimant discovers action or should have discovered both the harm and the cause. UTAH CODE ANN. 78B Property Damage: An action for property damage must be brought within three (3) years. UTAH CODE ANN. 78B Survival: Causes of action arising out of personal injury to the person or death caused by the wrongful act or negligence of another do not abate upon the death of the wrongdoer or the injured person. UTAH CODE ANN. 78B-3-107(1). Tolling: The above statutes of limitation are tolled when a person is a minor, a disabled person, or when a person is absent from the state. UTAH CODE ANN. 78B-2-104, Wrongful Death: An action for wrongful death may be brought within two (2) years. UTAH CODE ANN. 78B-2-304(2). Statute of Repose There are two state laws that operate to limit the time in which a plaintiff has to sue a defendant subsequent to injury caused by a defendant s acts or products. One is called the statute of limitations and the other is called the statute of repose. The statute of limitations is a specific time period that typically starts running from the day of the injury. If the lawsuit is not filed within that time period, then any legal right of the injured consumer or their family will be lost forever and there will no longer be an option to sue for recovery of any money or compensation. The other state law is called the statute of repose. The statute of repose is different from the statute of limitations. Instead of a time period to sue after the injury occurs, it sets a date that closes the window on any potential defendants from being sued in the first place if an injury occurs beyond that period of time. 6

8 Here s an example to illustrate: If a building was constructed in 1997, and there is a ten (10) year statute of repose in construction claims in that state, and someone is injured when a terrace collapses in 2008, eleven (11) years later, they cannot sue the builder because it is outside the ten (10) year statute of repose. In other words, the statute protects potential defendants from being sued after a certain number of years whether or not they were responsible for someone s injury. Venue Rules Construction Law The Utah statute of repose states that contract or warranty "actions" against a "provider" arising out of the design, construction, or installation of an "improvement" must be brought within "six years" of "completion of the improvement": (3)(a) An action by or against a provider based in contract or warranty shall be commenced within six years of the date of completion of the improvement or abandonment of construction. Where an express contract or warranty establishes a different period of limitations, the action shall be initiated within that limitations period. UTAH CODE ANN (3). Products Liability The Utah Supreme Court held that even though there is no statute of repose in the Product Liability Act, "the legislature clearly intended the construction statute of repose to apply to products liability actions when they relate to improvements in real property. Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, 974 P.2d 1194; see UTAH CODE ANN Medical Malpractice The Utah medical malpractice statute is a two-part statute; it is a statute of limitations and a statute of repose. Sorensen v. Larsen, 740 P.2d 1336 (Utah 1987). The statute provides: No malpractice action against a health care provider may be brought unless it is commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect or occurrence.... UTAH CODE ANN (1). Thus, there is a four (4) year statute of repose governing medical malpractice actions, including wrongful death, in Utah. Jensen v. IHC Hosps., Inc., 944 P.2d 327 (Utah 1997). Venue is the place where the lawsuit should be heard. The proper venue largely has to do with geography, UTAH CODE ANN et seq.; see also 28 U.S.C.A (statutory basis for transfer of venue within the state or between federal district courts), but where there are multiple options the court considers: The Plaintiff initially gets to choose where the case will be heard 7

9 Convenience of parties and witnesses Regional differences Substantive law differences between states practitioners should be very aware that which federal court a case is filed in matters because that is the state substantive law that will be used. Further, courts generally recognize forum selection clauses in contracts. Also, venue needs to be treated in the same way as personal jurisdiction because it can be waived if not raised as an affirmative defense. Finally, for fairness, the defendant can make a motion to have a change of venue to avoid local prejudice or publicity. UTAH CODE ANN NEGLIGENCE The Utah legislature abolished joint and several liability and contribution among joint tortfeasors, and enacted the Liability Reform Act of 1986 and the Comparative Negligence Act. UTAH CODE ANN. 78B et seq. Definition of Fault: Fault means any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification, or abuse of a product. UTAH CODE ANN. 78B Comparative Fault/Contributory Negligence Utah is a comparative fault state. A person seeking recovery may recover from any defendant or group of defendants whose fault, combined with the fault of persons immune from suit, exceeds the fault of the person seeking recovery. In other words, a plaintiff who is fifty percent or more at fault is barred from recovery. UTAH CODE ANN. 78B-5-818(3). A defendant is not entitled to contribution from any other person, except claims of contribution or indemnity arising under statute, contract, or agreement. UTAH CODE ANN. 78B Moreover, this reform does not prevent immunity from liability, including governmental immunity or the exclusive remedy under workers compensation. UTAH CODE ANN. 78B A "defendant" need not be named as a party defendant to have its fault apportioned on a jury verdict form. UTAH CODE ANN. 78B-5-818(4)(b). However, "[a] person seeking to allocate fault shall identify in its answer those persons then known to that party who may be at fault and shall identify within a reasonable time any additional persons later discovered to have been at fault." UTAH CODE ANN. 78B Examples: 1. Plaintiff's fault= 40% Defendant's fault=60% Verdict= $10,000 8

10 Judgment=$6, Plaintiff's fault=50% Defendant's fault=50% Judgment=$0 Utah follows the unit rule (whereby the percentage of fault of all defendants added together is compared against Plaintiff's negligence) both by statute, UTAH CODE ANN. 78B (comparative negligence), and by prior court ruling. Jensen v. Intermountain Health Care Inc., 629 P.2d 903 (Utah 1984). This means that where there are multiple defendants, plaintiff's recovery is still only reduced by plaintiff's percentage of fault as long as it is less than 50%, even though it could be equal to or greater than the fault of one or more individual defendants. Examples: 1. Plaintiff's fault=25% Defendant A's fault=25% Defendant B's fault= 50% Defendants combined=75% Verdict= $10,000 Judgment= $7, Plaintiff's fault= 40% Defendant A's fault= 20% Defendant B's fault= 20% Defendant C's fault= 20% Defendants combined= 60% Verdict= $10,000 Judgment= $6,000 Also, if a third-party (a passenger, for example) is injured in an accident where the third party's driver and the other driver are each found to be 50% at fault, the third party can recover 50% of her damages from each driver. Thus, even though neither driver could recover from the other, the passenger still can. The Effect of Comparative Fault on Various Defenses: Several legal defenses that formerly could have barred a plaintiff's recovery are typically now considered under the comparative negligence analysis in determining apportionment of fault. These defenses include the following: (a) last clear chance, Dixon v. Stewart, 658 P.2d 591 (Utah 1982), (b) intervening cause, Harris v. Utah Transit Auth., 671 P.2d 217 (Utah 1983), (c) assumption of the risk, Donahue v. Durfee, 780 P.2d 1275 (Utah 1989). But see Hale v. Beckstead, 2003 UT App 240, 74 P.3d 628, altering Donahue, and (d) open and obvious danger. Generally, the common law holds that the possessor of property will only be liable for hazards that are present when the plaintiff entered the premises which the possessor should expect the customer would not discover or realize. The possessor will not be liable for harm caused by a 9

11 condition on the land where the danger is open and obvious or is known to the plaintiff unless the landowner/possessor should anticipate the harm despite such knowledge or obviousness. Historically, the fact that a hazard was "open and obvious" could serve as a total bar to a plaintiff's recovery. However, in 1989, the Utah Court of Appeals rejected the "open and obvious" defense as a total bar to recovery. Instead, the court noted that with the adoption of comparative fault principles in Utah, the obviousness of a danger, and the fact that it is or is not known to the plaintiff, is merely one factor in the comparative negligence analysis. More recently, the Utah Court of Appeals re-instated the "open and obvious" defense as a total bar to a plaintiff's recovery in Hale v. Beckstead, 2003 UT App. 240, 74 P.3d 628, relying on the Utah Supreme Court's reasoning in House v. Armour of Am., Inc., 929 P.2d 340 (Utah 1996). Essentially, the Open and Obvious defense can serve as a complete bar as a matter of law where reasonable jurors could come to only one conclusion. If reasonable jurors could disagree, then the factors must be weighed by the jury as questions of fact in determining comparative negligence. Further, while assumption of the risk is not a favored defense because it often works to defeat recovery in cases of genuine hardship, it is still allowed on a limited basis. Id. at 268. Thus, the court has merged assumption of the risk into the doctrine of comparative fault. Accordingly, the assumption of risk doctrine is a defendant's affirmative defense to acknowledged negligence in a contributory negligence system; since fault-sharing no longer absolutely bars a plaintiff's recovery, neither does this affirmative defense. Id. Exclusive Remedy Workers Compensation protections Workers Compensation provides a no-fault alternative to tort-based litigation. Therefore, statutes confer immunity on the employer because an employee who is injured on the job cannot file a tort claim against his employer even if the employer was negligent under most circumstances. Utah courts hold that the exclusive remedy provision of the Workmen's Compensation Act does not invalidate an express agreement under which the employer agrees to indemnify a third party for amounts paid to its employees. Shell Oil Co. v. Brinkerhoff-Signall Drilling Co., 658 P.2d 1187, 1191 (Utah 1983). The court explained: The exclusive remedy provision in the Workmen's Compensation Act does not govern all relationships between a third party and either the employer or the employee. Thus, it does not preclude the employee injured in the course of his employment from suing a negligent third party for damages.... Similarly, the exclusivity provision does not bar the enforcement of a written contract between a third party and the employer in which the employer voluntarily undertakes liabilities separate from or in addition to those owed to his employees by operation of law. Id. Thus, an indemnification agreement can strip an employer of the protection it would have otherwise enjoyed under the exclusive remedy provision of the Workmen's Compensation Act. See also Freund v. Utah Power & Light Co., 793 P.2d 362, 390 (Utah 1990). 10

12 Indemnification The general rule is that indemnity agreements do not cover losses to the indemnitee caused by the indemnitee's own negligent acts unless the indemnification of the indemnitee is clearly and unequivocally expressed. See, e.g., Barrus v. Wilkinson, 398 P.2d 207, 208 (1965); see also Union Pac. R.R. v. El Paso Natural Gas Co., 408 P.2d 910, 914 (Utah 1965); Freund v. Utah Power & Light Co., 793 P.2d 362, 370 (Utah 1990). Thus, a party is contractually obligated to assume ultimate financial responsibility for the negligence of another only when that intention is clearly and unequivocally expressed. However, the current rule in Utah is that "any and all" language is sufficiently clear and unequivocal to permit an indemnitee to be indemnified for his own negligence. Russ v. Woodside Homes, Inc., 905 P.2d 901 (Utah Ct. App. 1995) (holding a provision finding a party harmless for "any and all claims, damages, loss and expenses" and for "any death, accident, injury, or other occurrence resulting from visits to the job site" was sufficiently clear and unequivocal). Utah courts apply the rule of strict construction when confronted with an indemnity agreement and the claim that, through such an agreement, one party has shifted financial responsibility for its own negligence onto the other party. The presumption is against such an intention. Courts will not make any inference or implication from general language. Courts look to the purpose of the agreement. Ordinary rules of contract interpretation are used to interpret such clauses/agreements. Furthermore, common law disfavors agreements that indemnify parties against the consequences of their own negligence because they will be less careful in their behavior towards others. See, e.g., Bishop v. GenTec, 2002 UT 36, 48 P.3d 218 (indemnification language could not be read to provide indemnification to manufacturer for products liability claim where manufacturer made third party claim against installer on the basis of an indemnification clause on the reverse side of an invoice); Union Pacific Ry. Co., v. Intermountain Farmers Ass'n., 568 P.2d 724 (Utah 1997) (lessor could not use indemnification language in lease agreement to impose duty on lessee to indemnify lessor for lessor's negligent acts); Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062 (the supreme court strictly construes indemnity agreements against negligence; as a matter of public policy). Under Utah Code Section , an indemnity agreement in a construction contract is void because violates public policy. Healey v. J.B. Sheet Metal, Inc., 892 P.2d 1047 (Utah Ct. App. 1995). Pursuant to Section , a "Construction contract" is defined as "a contract or agreement relative to the design, construction, alteration, repair, or maintenance of a building, structure, highway, appurtenance, appliance, or other improvement to real property, including moving, demolition, or excavating, connected to the construction contract between: (i) a construction manager; (ii) a general contractor; (iii) a subcontractor; (iv) a sub-subcontractor; (v) a supplier; or (vi) any combination of persons listed in Subsections (1)(a)(i) through (v). UTAH CODE ANN ; see also Meadow Valley Contractors, Inc. v. Transcontinental Ins. Co., 2001 UT App 190, 27 P.3d 594 (holding did not apply and thereby void an agreement between a general contractor and a subcontractor for the subcontractor to obtain insurance). Moreover, "an indemnity agreement may be invalid as violative of public policy where it is the result of duress, deception, a disparity of bargaining power, or negotiations conducted at less than arm's length." Shell Oil Co. v. Brinkerhoff-Signal Drilling Co., 658 P.2d 1187, (Utah 1983) (citing cases). An adhesion contract is typically a standardized form offered to 11

13 consumers of goods and services on essentially a take it or leave it basis without affording the consumer a realistic opportunity to bargain and under such conditions that the consumer cannot obtain the desired product except by acquiescing in the form contract. Consequently, the standard in determining a contract of adhesion is unconscionability. See UTAH CODE ANN. 70A-2a-108. Further, the Utah UCC indicates unconscionability is the standard. According to the Restatement, "[i]t is to be emphasized that a contract of adhesion is not unconscionable per se, and that all unconscionable contracts are not contracts of adhesion. Nonetheless, the more standardized the agreement and the less a party may bargain meaningfully, the more susceptible the contract or a term will be to a claim of unconscionability." RESTATEMENT (SECOND) OF CONTRACTS 208 (Comments & Illustrations). Joint and Several Liability Where Utah has replaced the theory of contributory negligence with comparative negligence, joint and several liability has been statutorily rejected except in limited some circumstances. UTAH CODE ANN , For an exception, see "Family Purpose Doctrine" below, regarding driving minors. Strict Liability Standard Utah courts generally find strict liability in products, animals, and medical practice cases. The general rule in products liability was stated in Dimick v. OHC Liquidation Trust: To prevail on a strict products liability claim, a plaintiff must demonstrate (1) the product was unreasonably dangerous due to a defect or defective condition, (2) the defect existed at the time the product was sold, and (3) the defective condition was a cause of the plaintiff s injuries UT App 73, 157 P.3d 347. The court further found that a defective product could be the result of a manufacturing flaw, a design defect, or an inadequate warning regarding use. Id. Moreover, a court has found that the Strict Products Liability statute does not preclude a common-law action in negligence; both causes of action may be brought from a claim arising from a single injury involving the product. Slisze v. Stanley-Bostitch, 1999 UT 20, 979 P.2d 317. Additionally, a passive retailer is not subject to strict liability under the Product Liability Act where the manufacturer is a named party to the action. Yirak v. Dan s Super Markets, Inc., 2008 UT App 210, 188 P.3d 487. Further, Utah imposes strict liability on dog owners by providing that, every person owning or keeping a dog shall be liable in damages for injury committed by such dog and it shall not be necessary in any action to allege or prove such dog was of a vicious or mischievous disposition.... UTAH CODE ANN However, cat owners are not held to the same strict liability standard. Jackson v. Mateus, 2003 UT 18, 70 P.3d 78. On the criminal side, Felony Murder is a strict liability offense. State v. Perez-Avila, 2006 UT App 71, 131 P.3d

14 Learned Intermediary The limited duty of the manufacturer and sellers to convey warnings to patients about the risks associated with the use of their products is known as the Learned Intermediary Doctrine. Under this doctrine, the manufacturer is absolved of liability for informed consent and inadequate warning claims if the manufacturer properly and warned the healthcare provider of the risks associated with their product. Manufacturers generally convey their warnings through the Physician Desk Reference, package inserts, "Dear Doctor" letters, and sales representatives. Manufacturers and sellers do not have an obligation to communicate warnings directly to the patient. Such responsibility is assigned to the treating healthcare provider. The Learned Intermediary Doctrine is based on the theory that physicians are "the best conduit for any warnings" as they have the "ability to combine medical knowledge and training with an individualized understanding of the patient's needs...." Schaerrer v. Stewart s Plaza Pharmacy, 2003 UT 43, 79 P.3d 922. The physician is believed to act as a learned intermediary between the manufacturer and the consumer and it expected to weigh the potential benefits against the dangers in deciding whether a patient should take a certain medication. The reasons supporting the application of the learned intermediary doctrine to prescription drug products are as follows: First, medical ethics and practice dictates that the doctor must be an intervening and independent party between the patient and drug manufacturer. Second, the information regarding risks is often too technical for a patient to make a reasonable choice. Third, it is virtually impossible in many cases for a manufacturer to directly warn each patient. Therefore, if a manufacturer or seller of prescription medication provides a timely and adequate warning to the medical profession of dangerous side effects posed by its product, the manufacturer is absolved of all liability for harm caused by the medication. Id. at 928. However, if the manufacturer or seller fails to convey an adequate warning, the treating healthcare provider will not qualify as a learned intermediary. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 852 (10th Cir. 2003). In such a case, the manufacturer or seller can be held liable directly to the patient for the failure to provide a proper warning. Determining the adequacy of a manufacturer's warning to healthcare providers is generally an issue of fact left to the jury for consideration. However, in situations where the warning is clear, accurate, unambiguous, and warns directly of the conditions/problems alleged by the plaintiff, the court may determine as a matter of law that the warning was adequate. A number of facts are relevant to the determination of whether a manufacturer's warning is adequate: (1) methods used to communicate warnings to healthcare providers did chosen methods actually convey the message; (2) timeliness of the warning was warning kept up-to-date in light of new medical information; and (3) whether the warning appropriately communicated the urgency and significance of the risks. See generally Schaerrer, 79 P.3d at Once a manufacturer has rendered an adequate warning to healthcare providers, the manufacturer cannot be held liable for a provider's failure to pass the warning on to the patient. The physician's failure to communicate the warnings to the patient is seen as a break in the causal link between the manufacturer and the patient. 13

15 Willful and Wanton Conduct Willful and wanton conduct is malicious conduct which manifests a knowing and reckless indifference toward, and disregard of, the rights of others. Willful misconduct is the intentional doing of an act with knowledge that serious injury is a probable result. See, e.g., Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330 (Utah 1985); Behrens v. Raleigh Hills Hosp. Inc., 675 P.2d 1179 (Utah 1983); Brown v. Frandsen, 426 P.2d 1021 (Utah 1967); Crookston v. Fire Ins. Exch., 817 P.2d 789 (Utah 1991); Jensen v. Denver & Rio Grande R. Co., 138 P (Utah 1914). Mere negligence is not enough to constitute willfulness, wantonness, or recklessness. There must be either a design or purpose to inflict injury, or conduct manifesting a reckless disregard of consequences under the circumstances when the act done would probably or naturally result in injury, or, in other words, the act was done with the consciousness at the time that injury will naturally or probably result. Willful misconduct is a step beyond gross negligence, which is defined as reckless indifference, in that a defendant must be aware that his conduct will probably result in injury. Willful or wanton misconduct is an aggravated form of negligence, difference in quality rather than degree from ordinary lack of care. There is a distinction between willfulness, wantonness, and recklessness. Willfulness implies an act done intentionally, designedly. Wantonness applies to an action without regard to the rights of others; a conscious failure to observe care; a conscious invasion of the rights of others; willfully unrestrained action. Recklessness is a disregard of consequences; an indifference whether a wrong or an injury is done or not; an indifference to the rights of others and of natural and probable consequences. DISCOVERY Time frames for disclosures and discovery are based upon the amount in controversy in the case and range between 120 to 210 days for completion of discovery. Initial disclosures must be made by plaintiff s within fourteen days after the first answer is filed and other parties must provide their disclosures within twenty-eight days of plaintiff s disclosures or their appearance in the case. Limits on the amount of discovery are also in place depending on the amount involved. For cases involving $50,000 or less, discovery must be completed within 120 days parties are allowed three hours of depositions, no interrogatories, three requests for admissions and five requests for production. For cases involving more than $50, but less than $300,000.00, fact discovery must be completed within 180 days and parties are limited to fifteen hours of depositions, ten interrogatories, ten requests for admissions and ten requests for production. 14

16 For cases involving $300, or more, fact discovery must be completed within 210 days and parties are allowed thirty hours of depositions, twenty interrogatories, twenty requests for admissions and twenty requests for production. Electronic Discovery Rules Generally, a party is required, without awaiting a discovery request, to provide a copy of, or a description by category and location of, all discoverable documents, including electronically stored information, in the possession, custody, or control of the party supporting its claims or defenses, unless solely for impeachment. UTAH R. CIV. P. 26. The requirements of subdivision (a)(1) and subdivision (f) do not apply to actions: (i) based on contract in which the amount demanded in the pleadings is $ 20,000 or less; (ii) for judicial review of adjudicative proceedings or rule making proceedings of an administrative agency; (iii) governed by Rule 65B or Rule 65C; (iv) to enforce an arbitration award; (v) for water rights general adjudication under Title 73, Chapter 4; and (vi) in which any party not admitted to practice law in Utah is not represented by counsel. However, a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. UTAH R. CIV. P. 26. Expert Witnesses 1. Disclosure Forms: Unless otherwise stipulated by the parties or ordered by the court, all expert testimony disclosures shall be made in writing, signed and served. UTAH R. CIV. P Expert and Rebuttal Witnesses: Expert disclosures must be made within thirty days of the close of fact discovery or, if for rebuttal, within sixty days of the other party's disclosure of its experts. The expert disclosures must be in writing and must include the identity of the expert. UTAH R. CIV. P Discovery of Expert Work Product: For cases filed after November 2011, a party with the burden of proof on an issue must disclose its experts pertaining to such issues within seven (7) days after the close of fact discovery. The disclosure must contain the qualifications of the expert, including a list of publications in the last ten years, the compensation arrangement between the party and the expert, a listing a previous testimony in the prior four years, a summary of the opinions to which the expert expects to testify and all information and data the expert will rely upon in forming the opinions. UTAH R. CIV. P. 26(b)(3). Further discovery regarding experts may be had only by requesting a detailed written report or a four-hour deposition of the expert. The opposing party must elect either an expert report or expert deposition within seven days after the expert disclosure is made. Failure to make the election results in no further expert discovery. The report or deposition must be completed within twenty-eight days after the election. A party which does not have the burden of proof on an expert issue must disclose its expert as noted above within seven days after the later of the date its election is due or the date the report or deposition under such election occurs. The other party 15

17 must then make its own election between a report or deposition which must occur within twenty-eight days of the election. Non-Party Discovery; Subpoenas The Utah Rules of Civil Procedure do not distinguish between parties and non-parties with regard to subpoenas. UTAH R. CIV. P. 45. However, under the Federal Rules for the District of Utah, the notice of issuance of subpoena with a copy of the proposed subpoena that is (i) directed to a nonparty, and (ii) commands production of documents and things or inspection of premises before trial shall be served on each party as prescribed by both Federal Rule of Civil Procedure 45 and Utah Rule of Civil Procedure 45. FED. R. CIV. P. 45. Every subpoena shall: (1) issue from the court in which the action is pending; (2) state the title and case number of the action, the name of the court from which it is issued, and the name and address of the party or attorney responsible for issuing the subpoena; (3) command each person to whom it is directed to (a) appear and give testimony at a trial, hearing or deposition, or to (b) appear and produce for inspection, copying, testing or sampling documents, electronically stored information or tangible things in the possession, custody or control of that person, or to (c) copy documents or electronically stored information in the possession, custody or control of that person and mail or deliver the copies to the party or attorney responsible for issuing the subpoena before a date certain, or to (d) appear and to permit inspection of premises; (4) if an appearance is required, specify the date, time and place for the appearance; and (5) include a notice to persons served with a subpoena in a form substantially similar to the subpoena form appended to these rules. A subpoena may specify the form or forms in which electronically stored information is to be produced. UTAH R. CIV. P. 45. Privileges Attorney Client A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, and among the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, in any combination. UTAH R. EVID The privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication is presumed to have authority to claim the privilege on behalf of the client. UTAH R. EVID

18 Husband-Wife An individual has a privilege during the person's life to refuse to testify or to prevent his or her spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage and to prevent another from disclosing any such confidential communication. UTAH R. EVID The privilege may be claimed by the person who made the confidential communication, or by the person's guardian or conservator. The non-communicating spouse to whom the confidential communication was made is presumed to be authorized, during the life of the communicating spouse, to claim the privilege on behalf of the person who made the confidential communication. UTAH R. EVID Work Product There are three essential requirements for materials to be protected by the work product doctrine under rule 26(b)(3): (1) the material must consist of documents or tangible things, (2) prepared in anticipation of litigation or for trial, (3) by or for another party or by or for that party's representative. UTAH R. CIV. P. 26. Satisfying these requirements does not automatically guarantee protection. If the party seeking discovery can demonstrate substantial need for the materials and that the materials or their equivalent cannot be obtained without substantial hardship, the party will be entitled to those materials. See UTAH R. CIV. P. 26(b)(3); Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909 (Utah 1990). Communications to Clergy A person has a privilege to refuse to disclose and to prevent another from disclosing any confidential communication to a cleric in the cleric's religious capacity and necessary and proper to enable the cleric to discharge the functions of the cleric's office according to the usual course of practice or discipline. UTAH R. EVID The privilege may be claimed by the person who made the confidential communication, by the person's guardian or conservator, or by the person's personal representative if the person is deceased. The person who was the cleric at the time of the communication is presumed to have authority to claim the privilege on behalf of the communicant. UTAH R. EVID Government Informer The government has a privilege to refuse to disclose the identity of an informer. UTAH R. EVID The privilege may be claimed by counsel for the government or in the absence of counsel by another appropriate representative, regardless of whether the information was furnished to an officer of the United States government or a state or a subdivision thereof. UTAH R. EVID

19 Physician and Mental Health Therapist-Patient If the information is communicated in confidence and for the purpose of diagnosing or treating the patient, a patient has a privilege, during the patient's life, to refuse to disclose and to prevent any other person from disclosing (1) diagnoses made, treatment provided, or advice given, by a physician or mental health therapist, (2) information obtained by examination of the patient, and (3) information transmitted among a patient, a physician or mental health therapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or mental health therapist, including guardians or members of the patient's family who are present to further the interest of the patient because they are reasonably necessary for the transmission of the communications, or participation in the diagnosis and treatment under the direction of the physician or mental health therapist. UTAH R. EVID The privilege may be claimed by the patient, or the guardian or conservator of the patient. The person who was the physician or mental health therapist at the time of the communication is presumed to have authority during the life of the patient to claim the privilege on behalf of the patient. UTAH R. EVID Environmental Self-Evaluation A person for whom an environmental self-evaluation is conducted or for whom an environmental audit report is prepared can refuse to disclose and prevent any other person from disclosing an environmental audit report. However, the existence of an environmental audit report, but not its content, is subject to discovery but is not admissible as evidence in an administrative or judicial proceeding. Use of an environmental audit report in a criminal proceeding does not waive or eliminate the privilege in an administrative or civil proceeding. UTAH. R. EVID The privilege may be claimed by the person for whom an environmental self-evaluation is conducted or for whom an environmental audit report is prepared. The privilege may also be claimed by such person's guardian, conservator, personal representative, trustee, or successor in interest. Regardless of who prepared the environmental audit report, only the person for whom the environmental audit report was prepared can waive the environmental self-evaluation privilege under this rule. If the person is a corporation, company, or other business entity, the power to waive the privilege is limited to the officers and directors who have the requisite management authority to act for the entity. UTAH R. EVID Miscellaneous Matters A person upon whom the privilege rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or a predecessor while holder of the privilege voluntarily discloses or consents to the disclosure of any significant part of the matter or communication, or fails to take reasonable precautions against inadvertent disclosure. This rule does not apply if the disclosure is itself a privileged communication. UTAH R. EVID

20 Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was compelled erroneously or made without opportunity to claim the privilege. UTAH R. EVID The claim of privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom. UTAH R. EVID In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury. UTAH R. EVID Upon request, any party against whom the jury might draw an adverse inference from the claim of privilege is entitled to instruction that no inference may be drawn therefrom. UTAH R. EVID Requests to Admit A party may serve upon any other party a written request for the admission, for purpose of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. The request for admission shall contain a notice advising the party to whom the request is made that, pursuant to Rule 36, the matters shall be deemed admitted unless said request is responded to within thirty days after service of the request or within such shorter or longer time as the court may allow. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Without leave of court or written stipulation, requests for admission may not be served before the time specified in Rule 26(d). UTAH R. CIV. P. 36. (2) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons and complaint upon him. If objection is made, the reasons therefore shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it. Id. 19