Utah

Automobile Total Loss Thresholds

Total Loss Formula (TLF).

Insurer makes decision whether a vehicle is declared a non-repairable vehicle. Or, two or more major components suffer major damage. U.C.A. § 41-1a-1005.

Deductible Reimbursement

Automobile: Pro-Rata. Utah Admin. Code § R590-190 provides: “Insurers shall include first-party claimant’s deductible, if any, in subrogation demands initiated by insurer. Subrogation recoveries may be shared on a proportionate basis with first-party claimant when an agreement is reached for less than full amount of loss, unless the deductible amount has been otherwise recovered. The recovery shall be applied first to reimburse first-party claimant for amount or share of deductible when full amount or share of deductible has been recovered. No deduction for expenses can be made from deductible recovery unless an outside attorney is retained to collect such recovery. The deduction may then be for only a pro-rata share of the allocated loss adjustment expense. If subrogation is initiated but discontinued, the insured shall be advised.” 

Deductible must be included in any subrogation demand.

Must notify insured if subrogation efforts are discontinued.

Property: None.

Diminution of Value

First Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a first-party claim.

Third Party: In an action for damages to an auto, plaintiff, being entitled to recover the difference in the market value of his auto immediately before and after the injury, can recover not only the reasonable cost of repairs, but also any depreciation in market value after repairs were completed. Metcalf v. Mellen, 192 P. 676 (Utah 1920).

First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits

Utah does not appear to have any case law specifically allowing a liability carrier to settle one of multiple claims against its insured arising out of the same accident. However, Utah does encourage the use of Interpleader for any person facing multiple liabilities, by disclaiming his interest and submitting the matter of ownership for adjudication by the court. Terry’s Sales, Inc. v. Vander Veur, 618 P.2d 29 (Utah 1980).

Funeral Procession Traffic Laws

There are no state laws governing funeral processions.

Imputing Contributory Negligence of Driver to Vehicle Owner

Imputed Contributory Negligence Law:  Statute making parent liable for driving of minor was an imputation of liability statute not a negligence imputation statute. Phillips v. Tooele City Corp., 500 P.2d 669 (Utah 1972).

Vicarious Liability/Family Purpose Doctrine:  Utah does not recognize the Family Purpose Doctrine. Mehr v. Child, 90 Utah 348, 61 P.2d 624 (1936); Reid v. Owens, 98 Utah 50, 93 P.2d 680 (1939).

Sponsor Liability for Minor’s Driving:  U.C.A. 1953 § 53-3-211 Joint and several liability imposed on parents who signed child’s application for driver’s license or permit and child negligently injures person or damages property while operating motor vehicle

Keep Right Traffic Laws

Statute: U.C.A. § 41-6a-701, U.C.A. § 41-6a-704(2) (b) and U.C.A. § 41-6a-702.

Summary: Drivers must drive in the right lane except when passing another vehicle proceeding in the same direction; when there is an obstruction in the right half of the roadway; when passing a bicycle or moped; on a roadway with three marked traffic lanes; or on a roadway designated for one-way traffic. Slower traffic must keep right. Vehicle drawing trailer or semitrailer; vehicle or combination of vehicles with gross weight of 12,001 lbs. or more may not use left lane of freeway with at least three lanes, except to turn left, exit, avoid merging traffic, respond to emergency conditions, or follow direction signs.

Flow of Traffic: Drivers proceeding slower than the normal speed of traffic must drive in the right lane. Slower vehicles traveling in the left lane must move right to let faster traffic past. On a highway having more than one lane in the same direction, the operator of a slower moving vehicle traveling in the left general-purpose lane must yield to the overtaking vehicle by moving to the right and may not impede the flow of traffic.

Laws Regarding Using Cell Phones/Headphones/Texting While Driving

Cell Phone/Texting:  No person operating a motor vehicle may write, send, or read a written text, instant message, or electronic mail.  No driver may operate a cell phone in a hand-held manner. Exceptions include emergencies, using as GPS, or reporting a safety hazard.  U.C.A. § 41-61-1716(2).

Other Prohibitions:  No Applicable Laws.

Comments:  Local highway authorities may not prohibit cell phone use while driving. U.C.A. § 41-6a-208.

Loss Of Use

Loss of Use: Yes. Can recover any loss of use for a reasonable period of time until the vehicle can be repaired. Metcalf v. Mellen, 192 P. 676 (Utah 1920). Recovery for loss of use of a vehicle is not contingent upon having rented a replacement vehicle. Castillo v. Atlanta Casualty Co., 939 P.3d 1204 (Utah Ct. App. 1997). However, must prove the extent of damage by showing how much the vehicle would have been used (how many days replacement needed). Id. Loss of use “should not be calculated simply by reference to the number of days that the vehicle sits idle, absent evidence that the vehicle would have been in use for the entire period.” Id. In Castillo, the court did not reference the fact that the vehicle was a total loss, leading to the assumption that loss of use is recoverable on total loss claims when the amount of days for replacement is proven. Id. Also see Castillo case, footnote 8.

Lost Profits: Yes. [Utah courts] have recognized that lost profits may be recovered when the evidence submitted provides a basis for estimating them with reasonable certainty. Acculog, Inc. v. Peterson, 629 P.2d 728 (Utah 1984). While the evidence must not be so indefinite as to allow the jury to speculate as to their amount, some degree of uncertainty is tolerable. Id.

Med Pay/PIP Subrogation

Med Pay: Coverage can be offered in addition to the PIP benefits. Med Pay can be subrogated, even without subrogation language in policy. Transamerica Ins. Co. v. Barnes, 505 P.2d 783 (Utah 1972).

PIP: U.C.A. § 31A-22-309(6) (1994) confers “limited, equitable right to seek reimbursement in arbitration” against third-party’s carrier only (includes disputes over fault and/or coverage), unless third-party carrier has tendered policy limits. Carrier receiving reimbursement might reimburse funds within 15 days after notice from at-fault carrier if reimbursement funds are needed to settle third-party liability claim. Regal Ins. Co. v. Canal Ins. Co., 93 P.3d 99 (Utah 2004).

• No-Fault State. Monetary threshold. $3,000 min. PIP limits. No third-party suit against another insured vehicle for non-economic damages allowed unless (1) death; (2) dismemberment; (3) permanent disability or impairment; (4) disfigurement; or (5) medical expenses more than $3,000.

Made Whole: Can be overridden with policy language. Hill v. State Farm Mut. Auto Ins. Co., 765 P.2d 864, 866 (Utah 1988); Birch v. Fire Ins. Exch., 2005 WL 2298130 (Utah App. 2005).

Statute of Limitations: The four (4) year personal injury statute of limitations runs from the date of the insured’s accident. U.C.A. § 78-12-25(3) (1996).

Owner Liability For Stolen Vehicles

Key In The Ignition Statutes: U.C.A. § 41-6a-1403.

Common Law Rule: Although Utah’s “key in the ignition statute” was found to not create a tort duty, and most cases have not found a driver liable for a stolen vehicle, Utah courts have not ruled out the possibility that special circumstances may exist where an owner could be found liable for conduct of a car thief. Rollins v. Petersen, 813 P.2d 1156 (Utah 1991); Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah 1996).

Payment of Sales Tax After Vehicle Total Loss

First-Party Claims:  Insurer may (1) offer a replacement of like kind and quality including all applicable taxes, license fees, or other fees, or (2) offer a cash settlement based on the actual cost of a comparable vehicle including all applicable taxes, license fees, or other fees. Utah Admin. Code r. § R590-190.

Third-Party Claims:  Third-party insurers must follow the same rules as first-party insurers. Utah Admin. Code r. R590-190

Pedestrian and Crosswalk Laws

Statute:

U.C.A. § 41-6a-1002: Vehicles must yield to pedestrian in crosswalk on vehicle’s half of road or close to it. Pedestrians must not step off curb and into path of vehicle when vehicle does not have time to stop. Vehicles must always yield to pedestrians in school zone crosswalk.

U.C.A. § 41-6a-1003: Pedestrians must yield to vehicles when crossing outside crosswalk. Pedestrians must use crosswalk at intersections with traffic control devices. Pedestrians may not cross diagonally.

Summary: In action to recover for injuries sustained by pedestrian when struck by defendant motorist’s vehicle as pedestrian was crossing street, evidence warranted finding that even if pedestrian was within crosswalk boundaries at time of impact, such pedestrian, who was wearing dark pants and dark jacket, on dark, cloudy evening and who may have relied on peripheral vision rather than looking in direction of the vehicle in question, had been 60% negligent. Lamkin v. Lynch, 600 P.2d 530 (Utah App. 1979).

Rental Car Company Physical Damage and Loss of Use Claims

Recovery From Renter: Car rental company can recover collision damages and loss of use damages from renter if (1) it discloses all charges and costs incidental to the basic daily rental rate and (2) the renter is provided with clear written notice on the rental agreement and in the rental company’s place of business Utah Code Ann. §31A-22-312(1).

Recovery From Third-Party: A vehicle owner is also entitled to recover the cost of preserving the car and any loss of use for a reasonable period of time until it can be repaired. Metcalf v. Mellen, 192 P. 676 (Utah 1920). In the alternative, the plaintiff can recovery the reasonable cost of repair of the vehicle and the diminution of value of the vehicle after the repairs are completed. Recovery for loss of use of a vehicle is not contingent upon having rented a replacement vehicle. Castillo v. Atlanta Casualty Co., 939 P.2d 1204 (Utah App. 1997). This is because to do so would condition recovery of this element of damage on a person’s ability to pay for a rental vehicle, which the law will not condone.

Rental Car Company’s Liability Insurance Primary or Excess

Summary: The renter’s policy is primary if it is valid and collectible. Utah Code § 31A-22-314. Compare this statute, however, with a case in which the court said that because of the use of the word “primary” in subsection (2) of 31A-22-344, (which was removed with a 2007 amendment) it would be inconsistent to permit Enterprise to provide no insurance. Li v. Zhang, 120 P.3d 30 (Utah App. 2005). The 2007 amendment made it clear that rental companies must maintain minimum liability limits on each rental vehicle, but if the renter has valid and collectible liability coverage, that coverage will be primary.

Sudden Medical Emergencies While Driving

Unavoidable Accident Instruction No Longer Used. The instruction runs the risk of misleading the jury, and suggests that an improper type of analysis might be used to decide a case. However, for policies issued in Utah, there is strict liability for a driver who experiences a sudden, unforeseen medical emergency, limited to the driver’s liability insurance limits. U.C.A. § 31A-22-303(1)(a)(v). Randle v. Allen, 862 P.2d 1329 (Utah 1993).

Instead, courts apply standard elements of negligence and burden of proof. Solorio ex rel. Solorio v. United States, 228 F. Supp.2d 1280 (D. Utah 2002). Section 31A-22-303 imposes strict liability (limited to liability limits) on a driver who is stricken by an unforeseeable incapacity. Lancer Ins. Co. v. Lake Shore Motor Coach Lines, Inc., 391 P.3d 218 (Utah 2017).

Suspension of Drivers’ Licenses

Administrative Suspension: The operator must file the required post-accident security within ten (10) days after receiving notice to do so, or the Department will suspend his license/registration. U.C.A. § 41-12a-501(3)(a). Suspended license can be renewed by supplying the required security, or after the one (1) year suspension period. U.C.A. § 41-12a-503.

Judgment: Upon receipt of the judgment, the Department will immediately suspend the driver license of the judgment debtor. U.C.A. § 41-12a-511. License will remain suspended for eight (8) years or until the judgment is satisfied or stayed. U.C.A. § 41-12a-511.

Contact Information: State of Utah, Department of Public Safety, Driver License Division, P.O. Box 144501, Salt Lake City, UT 84114-4501, (801) 965-4437, https://dld.utah.gov/

Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles

Authority: U.C.A. § 31A-22-316 to 319.

Summary: All non-OEM parts must be marked with either the name or logo of the part’s manufacturer and the name/logo should remain visible after installation if possible. The insurer may not use non-OEM parts unless the insured is given written notification and the written estimate identifies which parts are non-OEM parts and includes a disclosure stating that the part manufacturer warranted the part, not the auto manufacturer.

Municipal/County/Local Governmental Immunity and Tort Liability

Legal Authority: 

Utah Governmental Immunity Act (GIAU):  U.C.A. §§ 63G-7-101 through 63G-7-904 (1963).  “Governmental Entity” and its employees retain immunity for all “governmental functions” (defined as “activity, undertaking, or operation of a governmental entity”) no matter how labelled, unless expressly waived in Act.  “Governmental Entity” includes State and all its political subdivisions.

Notice Deadlines:   Written Notice of Claim must be filed within one (1) year after denial of claim. U.C.A. §§ 63G-7-401.  Within sixty (60) days of filing written Notice of Claim government must approve or deny. Then suit can be brought. U.C.A. §§ 63G-7-401, 402, 403.  Plaintiff has one (1) year after denial of claim or after the 60-day period ends to bring the action.  Utah Code Ann. §§63-G-7-401, 402, 403.

Claims/Actions Allowed:  No liability (exceptions to waiver) for:  (1) discretionary function (distinct and limited immunity for decision that involves policy-making function);  See “Little Test” Little v. Utah, 667 P.2d 49 (Utah 1983) (e.g., fire fighting). (2) assault, false imprisonment; (3) negligent inspection; (4) judicial proceedings; (5) operation or repair of flood systems; and (6) many others.  U.C.A. § 63G-7-201.  Governmental entity immune from latent condition of road, tunnel, bridge, sidewalk or any public building or structure.

Comments/Exceptions:  Immunity waived as to:  (1) any act by employee in scope of employment; (2) contractual obligations; (3) defective, unsafe condition of road, sidewalk, bridge, etc.; (4) defect or condition of building, structure, etc. (U.C.A. § 63G-7-301); and (5) injury or damage resulting from employee driving or being in control of a vehicle.  U.C.A. § 63G-7-202(3)(c)(2).  Three-part test to determine whether there is immunity:  (1) whether the activity is a governmental function; (2) whether governmental immunity was waived for the particular activity; and (3) whether there is an exception to that waiver.  Winkler v. Lemieux, 329 P.3d 849 (Utah App. 2014).

Damage Caps: 

Property Damage: $233,600.  U.C.A. § 63G-7-604(1)(c).

Personal Injury:  $583,900. U.C.A. § 63G-7-604(1)(a).  $2 million aggregate limit for single occurrence.  U.C.A. § 63G-7-604(1)(d).

State Sovereign Immunity And Tort Liability

Tort Claims Act: Utah Governmental Immunity Act (GIAU). U.C.A. §§ 63G-7-101 through 63G-7-904 (1963).  “Governmental Entity” and its employees retain immunity for all “governmental functions” (defined as “activity, undertaking, or operation of a governmental entity”) no matter how labelled, unless expressly waived in Act. “Governmental Entity” includes State and all its political subdivisions.

Notice Deadlines:  Written Notice of Claim must be filed within one year after denial of claim.  U.C.A. §§ 63G-7-401. Within 60 days of filing written Notice of Claim government must approve or deny. Then suit can be brought. U.C.A. §§ 63G-7-401, 402, 403.

Claims/Actions Allowed:  Governmental entity immune from latent condition of road, tunnel, bridge, sidewalk or any public building or structure.  No liability (immunity not waived) for:

(1) “discretionary function” (distinct and limited immunity for decision that involves policy-making function);

See “Little Test” Little v. Utah, 667 P.2d 49 (Utah 1983) (e.g., fire fighting).

(2) assault, false imprisonment;

(3) negligent inspection;

(4) judicial proceedings;

(5) operation or repair of flood systems; and

(6) many others.

U.C.A. § 63G-7-201.

Comments/Exceptions:  Immunity waived as to:

(1) any act by employee in scope of employment;

(2) contractual obligations;

(3) defective, unsafe condition of road, sidewalk, bridge, etc.;

(4) defect or condition of building, structure, etc. (U.C.A. § 63G-7-301); and

(5) injury or damage resulting from employee driving or being in control of a vehicle.

U.C.A. § 63G-7-202(3)(c)(2).

Three-part test to determine whether governmental entity enjoys immunity under the Governmental Immunity Act:

(1) whether the activity is a governmental function;

(2) whether governmental immunity was waived for the particular activity; and

(3) whether there is an exception to that waiver.

Winkler v. Lemieux, 329 P.3d 849 (Utah App. 2014).

Damage Caps:  Property Damage: $233,600. U.C.A. § 63G-7-604(1)(c). Personal Injury: $583,900. U.C.A. § 63G-7-604(1)(a). $2 million limit to aggregate amount of individual awards for single occurrence. U.C.A. § 63G-7-604(1)(d).

Anti-Indemnity Statutes

Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. Utah Code § 13-8-1.

Indemnification provisions between owner and construction parties will result in pro-rata proportionate share of fault.

Contribution Actions

Pure Several Liability. Several Liability – if some parties are immune from suit, their share can be allocated to the other defendants if their fault is less than 40%. U.C.A. § 78B-5-818.

Utah has no joint and several liability. Therefore, a defendant in a tort case is not entitled to contribution. A defendant may join other responsible parties as defendants in the original action, and may identify non-parties whom the trier of fact should consider when allocating fault. U.C.A. § 78B-5-820. There is a four year statute of limitations for personal injuries. U.C.A. § 78-12-25(3).

Contributory Negligence/Comparative Fault

Modified Comparative Fault: 50% Bar. Damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. A plaintiff, who is more at fault than defendant, or group of defendants, recovery will be barred. U.C.A. § 78B-5-818(2).

Dog Bite Laws

Dog owner is liable for damages, regardless of prior knowledge of dog’s vicious propensities. Government will not be held liable for dogs assisting law-enforcement. Utah Code Ann. § 18-1-1.

Economic Loss Doctrine

Intermediate Rule. (Waffling and has independent duty exception) Only recently has Utah adopted the ELD, prohibiting the recovery in tort of solely economic damages, including damages to or diminution in value of the product itself. Hermansen v. Tasulis, 48 P.3d 234 (Utah 2002). However, Utah has carved an exception which says that the ELD does not bar tort claims when those tort claims are based on a duty independent of those found in the contract. Grynberg v. Questar Pipeline Co., 70 P.3d 1 (Utah 2003). In Utah, tort law governs the duties and liabilities imposed by legislatures and courts upon non-consenting members of society, and contract law governs independent duties that exist apart from the contract. All contract duties and all breaches of those duties – no matter how intentional – must be enforced pursuant to contract law. Until the Hermansen decision in 2002, Utah had adhered to the rule that where the alleged defective manufacture of a product results in the deterioration of or damage to that product, the consumer’s damages are not “purely economic,” or economic loss alone, and actions to recover all damages resulting from the product’s deterioration should be allowed under a negligence theory. W.R.H., Inc. v. Economy Builders’ Supply, 633 P.2d 42 (Utah 1981). Utah had never recognized the ELD as applicable except as against claims of negligent design and construction of improvements to real property. Steiner Cor. v. Johnson & Higgins of Cal., 196 F.R.D. 653 (D. Utah 2000). The Utah Supreme Court has also strictly limited the reach of W.R.H. to its facts, and declined to extend its rule to govern transactions between sophisticated commercial entities. Salt Lake City Corp. v. Kasler Corp., 842 F.Supp. 1380 (D. Utah 1994). More recently, Utah passed a statute which codifies the ELD. Section 78B-4-513 provides:

• 78B–4–513. Cause of action for defective construction.

(1) Except as provided in Subsection (2), an action for defective design or construction is limited to breach of the contract, whether written or otherwise, including both express and implied warranties.

(2) An action for defective design or construction may include damage to other property or physical personal injury if the damage or injury is caused by the defective design or construction.

(3) For purposes of Subsection (2), property damage does not include: (a) the failure of construction to function as designed; or (b) diminution of the value of the constructed property because of the defective design or construction.

(4) Except as provided in Subsections (2) and (6), an action for defective design or construction may be brought only by a person in privity of contract with the original contractor, architect, engineer, or the real estate developer.

(5) If a person in privity of contract sues for defective design or construction under this section, nothing in this section precludes the person from bringing, in the same suit, another cause of action to which the person is entitled based on an intentional or willful breach of a duty existing in law.

(6) Nothing in this section precludes a person from assigning a right under a contract to another person, including to a subsequent owner or a homeowners association.

Utah does have an “other property” exception to the ELD. Am. Towers Owners Ass’n, Inc. v. CCI Mech., Inc., 930 P.2d 1182 (Utah 1996) abrogated by Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, 221 P.3d 234 (Utah 2009).

Independent Duty Exception. If an independent duty exists under the law outside of any contractual obligations, the ELD does not bar a tort claim because the claim is based on a recognized independent duty of care and thus does not fall within the scope of the rule. Davencourt, supra. In AAAG-California, LLC v. Kisana, 2020 WL 763651 (D. Utah 2020), an auction house sent 43 cars to the defendant’s dealerships and retained title to the vehicles. The defendant worked with an employee of the plaintiff to steal the cars’ titles, enabling them to take ownership of the cars without payment. They sold the vehicles and took the money. Plaintiff sued for a constructive trust against the defendants, who argued the ELD applied. The court ruled that the ELD did not apply to bar the tort claims, however, where “the basis for the [those] claims is distinct and separable from the basis for the contract claims.” In addition, the court held that “[t]he independent duty principle is a means of measuring the reach of the economic loss rule.” Reighard v. Yates, 285 P.3d 1168 (Utah 2012). When an independent duty exists that does not overlap with those contemplated in a contract, the ELD does not bar a tort claim because the claim is based on a recognized independent duty of care and thus does not fall within the scope of the rule. Here, defendants had violated a well-established independent duty—a duty not to take property that belongs to another.

Parental Responsibility

Property Damage and Interruption; Discharge of Object; Theft. Liability imposed on parents if child intentionally damages or steals property, if child recklessly or willfully shoots an object at a vehicle, airplane, boat or train, or if child intentionally or unlawfully tampers with property of another and recklessly endangers human life or recklessly causes substantial interruption or impairment of a public utility service. U.C.A. 1953 § 78(A)-6-1113.

The limit of liability is $2,000.00. Child must be under 18-years-old.

Auto Liability. Joint and several liability imposed on parents who signed child’s application for driver’s license or permit and child negligently injures person or damages property while operating motor vehicle. U.C.A. 1953 § 53-3-211. Joint and several liability imposed on parents who allow child to operate motor vehicle and child negligently injures person or damages property while operating motor vehicle. U.C.A. 1953 § 53-3-212.

There is no limit of liability. Child must be under 18-years-old.

Spoliation

There is no authority demonstrating that Utah has adopted the spoliation doctrine. Burns v. Cannondale Bicycle Co., 876 P.2d 415, 419 (Utah App. 1994).

Statute of Limitations

Personal Property3 YearsU.C.A. § 78B-2-305(1)

Personal Injury/Death4 YearsU.C.A. § 78B-2-307(3)

Personal Injury/Wrongful Death2 YearsU.C.A. 1953 § 78B-2-304

Personal Injury/Medical Malpractice2 YearsU.C.A. § 78B-2-304(2), 78B-3-404

Breach of Contract/Written6 YearsU.C.A. § 78B-2-309(2)

Breach of Contract/Oral4 YearsU.C.A. § 78B-2-302(1)(a)

Breach of Contract/Sale of Goods4 YearsU.C.A. § 70A-2-275

Statute of Repose/ProductsN/AN/A

Statute of Repose/Real Property9 YearsU.C.A. § 78B-2-225*

Breach of Warranty/Personal Injury4 YearsU.C.A. § 78B-2-307(3)

Breach of Warranty/Property Damage3 YearsU.C.A. § 78B-2-305(1)

Workers’ Comp Third Party Case4 YearsU.C.A. § 34 A-2-106

Strict Product Liability/Personal Injury2 YearsU.C.A. § 78B-6-706

Strict Product Liability/Property Damage2 YearsU.C.A. § 78B-6-706

Statute of Limitations Exceptions

*If breach of contract or warranty case, six (6) years from completion. All others two (2) years from discovery or reasonable discoverability, but not more than nine (9) years. If discovered in 8^th or 9^th year, then two (2) additional years. U.C.A. § 78B-2-225.

Health and Disability Insurance

Statute of Limitations:  4 Years. U.C.A. § 78B-2-307(3). Wrongful Death – 2 Years. Medical Malpractice – 2 Years. U.C.A. § 78B-2-304(2); U.C.A. § 78(B)-3-404.

Subrogation of Medical and Disability Benefits are allowed. U.C.A. § 31A-21-108; Wilson v. Educators Mut. Ins. Ass’n, 2017 UT 69, 416 P.3d 355; Educators Mut. Ins. Ass’n v. Allied Prop. & Cas. Ins. Co., 890 P.2d 1029, 1031 (Utah 1995). Made Whole Doctrine applies. Wilson v. Educators Mut. Ins. Ass’n, 2017 UT 69, ¶ 19, 416 P.3d 355, 359 (“They may provide in an insurance policy that the insured need not be made whole before the insurer may sue for subrogation.”) Common Fund Doctrine does not apply. Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 22, 428 P.3d 1096, 1103; Kramer v. State Ret. Bd., 2008 UT App. 351, 195 P.3d 925, n.10 (Utah 2008) (“even if the doctrine did apply (which it does not)”).

Admissibility of Expert Testimony

Admissibility Standards:  Daubert

Case/Statutory Law:  State v. Rinmasch, 775 P.2d 388 (Utah 1989).

Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims

Duty To Disclose: Yes. Utah Admin. Code R590-190-12 (7).

Comments: Insurer must disclose policy limits when requested to do so by a claimant or claimant’s attorney.

Recording Conversations

One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. An individual may also disclose the content of any electronic communication that is readily accessible to the general public. Utah Code Ann. § 77-23a-4; Utah Code Ann. § 77-23a-3.

Product Liability Law

Statute of Limitations/Repose: 2 years for personal injury and wrongful death. U.C.A. § 78B-6-706.

Liability Standards: Negligence, Strict Liability, Warranty.

Fault Allocations: Modified Comparative. U.C.A. § 78B-5-818(2).

Non-Economic Caps/Limits On Actual Damages: No.

Punitive Y/N and Limits: Yes.

Heeding Presumption?: Yes. House v. Armour of America, Inc., 929 P.2d 340, 347 (Utah 1996).

Innocent Seller Statute: Yes.

Joint and Several Liability: No. U.C.A. § 78B-5-818.

Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Presumption; Compliance With Government Standards; Sophisticated User.

Restatement 2nd or 3rd?: Restatement 2^nd

“Matching Regulations” And Laws Affecting Homeowners Property Claims

Statute/Regulation: If replaced items do not match in color, texture, or size, the insurer shall repair or replace items so as to conform to a reasonably uniform appearance. The insured is only responsible for the applicable deductible. Utah Admin. Code r. R590-190.

Caselaw: None.

Condominium/Co-Op Waiver of Subrogation Laws

Associations shall maintain blanket property insurance and liability insurance as to the common areas and facilities. Additionally the insurer must waive subrogation rights against the unit owner and any members of their household. U.C.A. § 57-8-43 (1953).

Damage to Property Without Market Value

Service Value:  Although the market value of converted property is ordinarily the basis for ascertaining damages in a conversion action, alternative measures of damages may be appropriate in extraordinary cases. Mahana v. Onyx Acceptance Corp., 96 P.3d 893 (Utah 2004).

Intrinsic Value:  “If, however, there is no demand for the item, the recovery is based on actual value, or in the case of unique chattels, value to the owner.” Winters v. Charles Anthony, Inc., 586 P.2d 453 (Utah 1978).

Sentimental Value:  With damage to personal property, such as heirlooms, keepsakes, etc., plaintiff is not limited to a recovery of their market value, but may recover their value, based on a reasonable consideration of their sentimental value to her. Pennington v. Redman Van & Storage Co., 97 P. 115 (Utah 1908).

General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims

Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.

Landlord/Tenant Subrogation

Utah considers the tenant an implied co-insured for the “limited purpose” of subrogation. GNS Partnership v. Fullmer, 873 P.2d 1157, 1162 (Utah Ct. App. 1994).

Anti-Subrogation Rule

An insurer cannot subrogate against its own insured, or a co-insured under the policy. Bd. of Educ. of Jordan School Dist. v. Hales, 566 P.2d 1246 (Utah 1977). Where an insurance company attempts to recover, as a subrogee, from a co-insured generally covered under a fire insurance policy, the action must fail in the absence of design or fraud on the part of the co-insured. Id. In Hales, the Board of Education of the Jordan School District (“School District”) hired a contractor to construct a new school, and one of the subcontractors hired to work on the school negligently started a fire which caused significant damage to the school. The School District’s insurer attempted to subrogate against the subcontractor on the basis that their builder’s risk insurance covered property damage only and, therefore, the subcontractor could be subrogated against for the liability the subcontractor incurred by negligently starting the fire. The court reasoned that an “insurer which accepts a premium based partially on the inclusion of a co-insured under a policy of insurance has assumed the risk of its negligence.” Therefore, the subcontractor was an insured under the policy and subrogation was barred.

Criminal Restitution

Per the Utah statute, a criminal defendant will be liable for restitution to a “victim” of their criminal conduct. U.C.A. § 76‐3‐201. The statute further defines a “victim” as anyone who, upon the determination of the court, suffered a pecuniary loss as a result of the aforementioned criminal conduct. U.C.A. § 76‐3‐201(1)(e)(i). Utah case law has determined that under that definition, an insurer qualifies as a “victim” and could be entitled to restitution from the criminal defendant. State v. Stirba, 972 P.2d 918 (Utah 1998).

Made Whole Doctrine

Utah first adopted the Made Whole Doctrine in 1988. Hill v. State Farm Mut. Auto Ins. Co.,. The Court in Hill also provided that the Made Whole Doctrine could be modified by contract. However, the modification, in order to effectively displace the Doctrine, must be sufficiently clear and unambiguous as to put the insured on notice of that fact. State Farm Auto. Ins. Co. v. Green, 89 P.3d 97, 105 (Utah 2003). General subrogation language is insufficient to explicitly inform an insured that its insurer has priority of rights even though the assets of the third party are inadequate to fully compensate the former. Id.

The Made Whole Doctrine’s application to statutory subrogation disputes depends upon the court’s determination of the legislative intent and purpose of the statute. Equitable principles are to be employed in determining how the right is to be exercised where the statute merely grants the insurance carrier the right to subrogation. Anderson v. United Parcel Serv., 96 P.3d 903, 907 (Utah 2004). However, if the statute provides a detailed statutory scheme governing how an insurer’s subrogation right may be exercised and how the proceeds from an action against the third party are to be distributed, the Made Whole Doctrine will not be applicable. Id.

In the absence of express terms to the contrary, an insured must be made whole before the insurer is entitled to be reimbursed from a recovery from the third-party tortfeasor. Id. The Made Whole Doctrine will be applied wherever it is not possible from the subrogation terms of the policy to ascertain the intent of the parties as to the extent of their respective rights under the subrogation clause. Id. This is in line with Utah’s reasonable interpretation that contractual subrogation is not an equitable doctrine governed by equitable principles, and can be modified by contract. Id; Birch v. Fire Ins. Exch., 122 P.3d 696 (Utah App. 2005); Hill, supra. Non-contractual subrogation rights (equitable subrogation) will only be enforced on behalf of a party maintaining a superior equitable position and the insurer’s equitable position cannot be superior to the insured’s unless the insured has been completely compensated. Trans American Ins. Co. v. Barnes, 505 P.2d 783 (Utah 1973).

Generally, the insured must be made whole before the insurer is entitled to be reimbursed from or subrogated to a third-party tortfeasor’s recovery. Lyon v. Hartford Accident & Indem. Co., 480 P.2d 739 (Utah 1971). Non-contractual subrogation rights (equitable subrogation) will only be enforced on behalf of a party maintaining a superior equitable position and the insurer’s equitable position cannot be superior to the insured’s unless the insured has been completely compensated. Barnes, supra.

Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule

Collateral Source Rule: Common law CSR. Collateral sources from insurance, the premiums for which were not paid by nor contributed to by defendant, are not to be credited to defendant. Phillips v. Bennett, 439 P.2d 457 (Utah 1968).

Recovery Of Medical Expenses Rule:

Private Insurance: Issue hasn’t been addressed by Utah courts. Tschaggeny v. Milbank Ins. Co., 163 P.3d 615 (Utah 2007). Medical expenses must be “reasonable and necessary.” Gorostieta v. Parkinson, 17 P.3d 1110 (Utah 2000). Evidence admissible to establish “reasonable and necessary” has yet to be determined, but a district court has held that only the billed amount is permitted. Sanchez v. Cache Valley Specialty Hosp., LLC, 2012 WL 6057104 (Utah Dist. Ct. 2012) (Trial Order). In Amos v. W.L. Plastics, Inc., 2010 WL 360772 (D. Utah 2010), a federal court held that “the Utah Supreme Court would follow the majority rule concerning medical bill write-offs.” In other words, plaintiff entitled to recover the full amount of reasonable medical expenses charged, based on the reasonable value of medical services rendered, including amounts written off.

Medicare/Medicaid: No cases addressing this issue. Presumably the same as private insurance.

Related Law/Comments:

Medical Malpractice: Evidence of collateral source allowed, and damages reduced “by the total of all amounts paid to the plaintiff from all collateral sources available to him.” After verdict, court hears evidence and reduces damages by amounts of collateral sources, offset by amounts plaintiff paid to secure those benefits. No reduction for if rights of subrogation. Although the court does not make any reduction for future collateral source benefits, the trier of fact may consider evidence of possible future benefits from government programs when it determines damages. To preserve subrogation, subrogee must serve written notice on each defendant within 30 days before settlement or judgment. U.C.A. § 78B-3-405.

Employee Leasing Laws

The employee leasing company and the client company in an employee leasing situation are both entitled to protection under the exclusive remedy provisions of the Utah Workers’ Compensation Act, provided the employee leasing arrangement meets the requirements of the Employee Leasing Company Licensing Act. U.C.A. § 34A-2-102(3)(a) and U.C.A. § 34A-103(7)(e).

Hospital Lien Laws

Statute: Utah Stat. §§ 38-7-1 to 38-7-8. Hospital Lien Law.

Perfecting Lien:

(1) Verified written notice must be filed in district court of county in which hospital located and include itemized statement of services, name and address of hospital, name of party liable for accident, and name and address of patient.

(2) Notice must be sent by certified mail, prior to any third-party settlement, together with statement of date of filing, to the third-party tortfeasor and its insurance carrier, if known. § 38-7-2.

Comments: Hospital has a lien on third-party recovery after attorneys’ fees/costs paid. No lien on recoveries less than $100. Lien is for amount of reasonable, usual, and necessary hospital charges. No lien if workers’ compensation or private health insurance cover the accident unless health insurer denies coverage or doesn’t pay within 180 days. Lien must be withdrawn when private health insurer pays the contracted amount. Hospital may assert lien for copayment or deductible owed by the patient. § 38-7-1. Third party carrier who received notice of lien is liable for lien if it settles without paying lien, for period up to one (1) year from date of third-party settlement. Hospital can file suit against third-party to enforce lien and recover reasonable attorneys’ fees and costs of litigation and lien filing. § 38-7-3. Once lien is paid, hospital must execute and file a release of lien and mail a copy of release of lien to patient. § 38-7-5. Hospital does not have to pay any costs of collection. Lien Statute merely creates a priority system for payment. The hospital lien is to be paid in full after the attorney’s fees and costs are paid from the fund. Bryner v. Cardon Outreach, LLC, 428 P.3d 1096 (Utah 2018).

OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases

OCIP Law: A “statutory employer” who obtains OCIP/CCIP enrollment of a subcontractor cannot be sued by the employee of the subcontractor. Nichols v. Jacobsen Constr. Co., Inc., 374 P.3d 3 (Utah 2016).

Statutory Employer Law: Any employer or general contractor who procures work to be done by a subcontractor over whose work the employer retains supervision or control is liable for compensation benefits to employees of subcontractors, provided that the work is a part or process in the trade or business of the original employer. Despite this, the subcontractor may sue the statutory employer if it did not actually pay workers’ compensation benefits. Pate v. Marathon Steel Co., 777 P.2d 428 (Utah 1989); Adamson v. Okland Constr., 508 P.2d 805 (Utah 1973); U.C.A. § 34A-2-103(7)(f)(ii). A contractor qualifies as an “eligible employer” who “procures work to be done wholly or in part for the employer by a contractor” which “secures” the payment of workers’ compensation benefits for purposes of § 34A-2-103(7)(f)(i) when it enrolls a subcontractor in an OCIP/CCIP. Nichols, supra.

Comments: Section 31A-2-103(7)(a) provides that if an employer procures work to be done wholly or in part for the employer by a contractor over whose work the employer retains supervision or control, and this work is a part or process in the trade or business of the employer, all persons employed by any of the subcontractors are considered employees of the original employer for the purposes of providing workers’ compensation benefits. The degree of control which a general contractor must exercise over a subcontractor to qualify as a statutory employer is less than that the amount of control required under the right-to-control test to determine whether someone is a common law employee. Utah Home Fire Ins. Co. v. Manning, 985 P.2d 243 (Utah 1999).

Recovery Of Increased Workers’ Compensation Premiums By Employer

Recovery For Increased Premiums? Undecided.

Statute/Case Law: None.

Rule Summary: There is no authority or precedent regarding the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.

Which Workers’ Compensation “Benefits” Can Be Subrogated?

There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 34A-2-106 describes a workers’ compensation carrier’s subrogation lien as follows: … the amount of payments made. U.C.A. § 34A-2-106.

Workers’ Compensation Subrogation Waiver Endorsements

Subrogation Statute: U.C.A. § 34A-2-106

Waiver Allowed? Nothing in the Utah Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.

Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided.

Other Applicable Law: The Utah Insurance Commissioner issued Bulletin 99-8 on September 29, 1999, indicating that the workers’ compensation statute “does not prevent the insurer from compromising its subrogation portion of the claim.” It also provides that a waiver of subrogation is permissible “as long as it does not affect the employee’s rights.” It must expressly exclude from release the insurer’s authority as trustee of the entire claim as provided in § 34A-2-106. While this does not specifically address waiver of subrogation endorsements, it would seem such endorsements would be allowed and enforced.

Workers’ Compensation

Statute of Limitations:  4 Years. U.C.A. § 34 A-2-106.

Can Carrier Sue Third Party Directly:  Yes.

Right to Intervene:  Yes.

Recovery from UM/UIM Benefits:  No.

Subrogation Against Medical Malpractice:  Yes.

Subrogation Against Legal Malpractice:  Undecided.

Recovery Allocation/Equitable Limitations:  (1) Fees, Expenses; (2) Carrier Reimbursed Fully, Less Pro-Rata Fees/ Costs; and (3) Net to Plaintiff.

Employer Contribution/Negligence:  40% Rule.

Attorney’s Fees/Costs:  Pro-Rata.

Future Credit:  Yes.

Auto No-Fault:  Yes.

Workers’ Compensation Claims by Undocumented Employees

Y/N/U:  Y

Statute:  The statute expressly includes illegal aliens regardless if their employment is legal or illegal.  Utah Code Ann. § 34A-2-104(1)(b).

Case Law:  Undecided