Rule 26 of the Utah rules of Civil Procedure was updated effective november 1, 2021 to provide new/updated timelines for expert discovery in civil matters. the updates apply to Tier 1, 2, or 3 cases. The Following link is to a cheat sheet document outlining the Rule 26 Discovery deadlines.
The United States Supreme Court recently issued opinions on two cases regarding qualified immunity of police officers alleged to have used excessive force. In both cases, the Court held that qualified immunity applied, overturning decisions of the Ninth and Tenth Circuit Courts of Appeal respectively. The Court stated that to survive a qualified immunity defense, a plaintiff must show that the law clearly established a right to be free from excessive force in the specific context surrounding the alleged conduct so that every reasonable officer was on notice that the alleged conduct would violate the right. The Court found that the plaintiffs in both cases failed to meet this burden because the cases they cited were materially distinguishable from the alleged conduct.
In Rivas-Villegas v. Cortesluna, 595 U.S. ____ (2021), 142 S. Ct. 4, officers responded to a 911 call from a woman and children who barricaded themselves in a bedroom to hide from the woman’s boyfriend, fearing he would harm them with a chainsaw. While arresting the boyfriend, an officer knelt on the man’s back for an unknown amount of time while other officers removed a knife from his pocket. The Court distinguished this conduct from a Ninth Circuit case where police responded to a noise complaint, the suspect was unarmed, and an officer deliberately dug his knee in the suspect’s back long enough to cause serious injury.
In City of Tahlequah v. Bond, 595 U.S. ____ (2021), 142 S. Ct. 9, officers responded to a 911 call regarding an intoxicated man who refused to leave his ex-wife’s garage. After the man refused to leave, the officers entered the garage. The man retrieved a hammer and raised it above his head. After he ignored the officers’ repeated demands to drop the hammer, officers fired their weapons, killing the man. The Court distinguished this conduct from multiple Tenth Circuit cases where police approached potentially suicidal individuals while screaming and either physically wrestled the suspect or pepper-sprayed them.
Cortesluna and Bond both uphold police officers’ qualified immunity, holding that an officer is immune from liability unless the law has clearly established that in the context of the matter at hand, every reasonable officer should know that the conduct would violate the suspect’s right to be free from excessive force.
The following are a few highlighted Case Law Updates from the past year:
After reviewing the denial of summary judgment for the owners of Canyons Ski Resort, the Court took the opportunity to affirm two previous cases that dealt with personal injury liability arising from recreational activities:
First, absent some type of specific legislative enactment that says otherwise, preinjury releases signed by parents on behalf of minors are unenforceable as a matter of law. Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062. Preinjury releases of this sort are frequently encountered at ski resorts, bounce houses, and rock-climbing arenas. In reaching its decision, the Court focused emphasized that these releases are often ambiguous, and also that they frequently run contrary to public policy.
Second, as illustrated in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), the Inherent Risks of Skiing statute does not per se foreclose claims of injury that are based on the resort’s negligent design and maintenance. In other words, to determine whether a risk is an integral part of the sport of skiing, courts will ask whether the skier could reasonably expect to encounter that risk while skiing. For example, if an unforeseen injury arose from a lift operator who negligently operated the lift, that would not be covered under the Inherent Risks of Skiing Statute because the injury was not a risk the skier could have reasonably expected to encounter.
In this case, although there were other potential causes of divorce, the Utah Supreme Court held that the district court did not abuse its discretion by reducing the amount of alimony afforded to the wife where her fault “substantially contributed” to the demise of the marriage. Therefore, if one party’s conduct was an important or significant factor in the decision to seek divorce, courts may weigh that action in their determination of an appropriate remedy. Such conduct need not even be the first cause or the only cause, and extrinsic evidence may be brought in to support any such finding of contribution.
The court interprets provisions of a declaration or a set of CCR’s as it would a contract. If the language is not ambiguous, it is interpreted according to its plain language; this is often referred to as the looking to the “four corners” of a contract. However, if the court determines that the language is ambiguous, the court looks for extrinsic evidence that might provide understanding as to the meaning and intent of the drafters of the document.
In this case, there was a dispute about the contractual meaning of a section titled “Common Areas and Facilities.” Because the court agreed that the provision was ambiguous, and because there was some evidence that the original plat included a note which indicated the common areas were limited to the foundation of the building, the court concluded that the district court had not erred in determining that the provision “Common Areas and Facilities” under the declaration was limited to the foundation.
The Utah Supreme Court declined to enter a highly publicized dispute between the Salt Lake Tribune and Brigham Young University. In 2016, the newspaper began investigating allegations that BYU’s honor code office was mishandling victims’ reports of sexual abuse. Specifically, the Tribune alleged that the BYU police department was aiding the office in order to facilitate the discipline of offending students. The Tribune accordingly sent a GRAMA request to University Police requesting all emails between the police department and certain officials at the honor code office, seeking evidence of such misconduct. After the district court concluded that the University Police constitute a “governmental entity” under GRAMA, thus requiring disclosure, BYU petitioned to appeal the district court’s interlocutory order. After certification by the court of appeals, oral arguments were offered in front of a fractured portion of the Court (Justices Lee, Himonas, and Pearce recused themselves).
Because the legislature recently amended GRAMA to include University Police as a “governmental entity,” subject to the statute’s disclosure provisions, this issue became moot and the Court declined to address the appeal. Despite many accusing the Supreme Court of “punting” on the issue, this likely paves the way for the Tribune to file a new GRAMA request for documents which, under the amended code, will likely require disclosure.
In this case, the Utah Court of Appeals provided guidance regarding the reliability of expert witness testimony in the context of a medical malpractice suit. Contrary to prior consensus, an expert witness is not required to explicitly state whether each opinion he or she provides is given within “a reasonable degree of medical certainty.” Instead, the court should view the testimony as a whole and analyze the substance of what is offered in order to determine whether the testimony is sufficiently reliable. Thus, even when a medical expert only implies a reasonable degree of medical certainty, the court may infer reliability based on the totality of the testimony.
Here, the 10th Circuit resolved ambiguity between the ‘continuing violation doctrine’ and the ‘repeated violations doctrine.’ The court held that when a government entity violates Title II of the Americans with Disabilities Act, the latter applies. In other words, when violative conduct occurs, the violation occurs repeatedly until the government affirmatively acts to remedy its non-compliant service or activity, as opposed to only initially when the entity constructed or created the non-compliant service. This is significant because under this doctrine, the statute of limitations would bar recovery only for injuries the plaintiff incurred outside of the limitations period immediately preceding the day of the suit; it would not bar recovery for injuries the plaintiff suffered within the limitations period of after the plaintiff filed suit.
Stewart Harman, from the municipal litigation division of Plant, Christensen and Kanell recently briefed and argued a case involving the application of the judicial doctrine of comity to the Utah Supreme Court. A Utah resident was injured in a motor vehicle accident in Utah by an Arizona municipal employee. The Utah resident filed a claim against the City of Flagstaff within the time for filing a claim against a municipality in Utah under Utah law but the claim was filed after the expiration of the time for filing a claim against a municipality under Arizona state law. The Utah district court dismissed the claim for failure to meet the jurisdictional prerequisite of timely filing a notice of claim. The Utah resident appealed.
Applying principles of comity, the Utah Supreme Court affirmed the dismissal in the case of Galindo v. Flagstaff, 2019 UT 67 (November 1, 2019). Acknowledging the initial presumption that comity should be extended to the governmental immunity acts of other states, the Court reasoned that “the party seeking to rebut [that] presumption must show that the extension of comity ‘contravene[s]’ or ‘undermines’ Utah’s public policy.
The plaintiff first argued that Arizona’s time bar on filing a notice of claim violated Utah’s public policy because it is six months shorter than Utah’s limitation. However, the Court found this argument unpersuasive because both Utah and Arizona have conditioned suits against the state and its political subdivisions by requiring timely filing of a notice of claim within a relatively short period. As a result, the Court found that the small difference in the notice of claim periods does not violate Utah’s public policy
Plaintiff also argued that the application of comity to bar a Utah plaintiff from recovery in Utah violated Utah’s public policy. However, the Court distinguished the cases relied on by the Plaintiff, reasoning that the Plaintiff here was not completely barred from suit, but rather barred because she failed to file a notice of claim within the allotted time period. Further, failure to extend comity in this instance could lead to forum-shopping and potentially eviscerate the doctrine of comity almost entirely.
For those reasons, the Court found that Galindo failed to comply with the Statute’s notice of claim requirement and Galindo’s action was untimely and subject to dismissal. As such, Comity was rightfully extended, and the district court correctly applied the Arizona Statute.
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.
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.
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.
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.
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 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.
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.
The Municipal Litigation Pitfalls Presentation is available in the slideshow above, or in PDF format by clicking here. To download a copy of the updates to municipal law document below, click here.
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.
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.
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.
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.
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.
[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).
Rule 7 | Pleadings allowed; motions, memoranda, hearings, orders.
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.
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
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.
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
Rule 65 | Post-Conviction Relief
Rule 84 | Forms
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.
On January 11, 2017, our firm 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 the argument before the court, click here, then select "listen" next to "Fire Ins Exchange v. Oltmanns 20160304."
