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UTAH LAW HIGHLIGHTS

November 15, 2017

 

 

General Discovery:

 

  • URCP 8 – a party must state a legal theory for relief and state an amount of damages in the Complaint

 

  • URCP 16 – requires the Court to direct mediation or “other ADR process”, grants the court more control over the scheduling order in a case and allows the court to sanction a party for violating any orders, not just discovery violations

 

  • URCP 26 – this rule is largely a mirror of the Federal Rules, but it has some significant differences:

 

  • Discovery Tiers.  This is a recent enactment, done to reduce litigation costs and the timing of smaller claims:

    • Tier 1 cases

      • $50,000 or less – judgments and awards are limited by this election;

      • 3 hours of deposition per side (not per party);

      • No Interrogatories allowed, Requests for Production (“RPD”) and Request for Admissions are limited to 5 of each (per party);

      • Fact discovery ends 120 days after first Answer filed – 4 months

    • Tier 2 cases

      • $50,000-$300,000;

      • 15 hours of deposition time per side;

      • Limit of 10 Interrogatories, RPD, and Admissions per side (not per party);

      • Fact discovery ends 180 days after first answer filed – 6 months

    • Tier 3 cases

      • $300,000 or more;

      • 30 hours of deposition time per side;

      • Limit of 20 Interrogatories, RPD and Admissions per side;

      • Fact discovery ends 210 days after first Answer filed –  7 months;

      • The most selected tier – no statutory limit to the recovery.

 

  • Initial Disclosures. 

    • All fact witnesses who may or will be called at trial and short summary of testimony;

    • Copies of all documents a party will offer in its case in chief must be produced;

    • Computation of damages plus all supporting documents produced;

    • A copy of any insurance policy that may indemnify a party; and

    • Any documents referenced in pleadings.

    • In Personal Injury Cases, all of the above, plus the following:

      • Plaintiff’s medical providers in the 5 years before the accident;

      • Plaintiff’s SSN and HICN;

      • Description of all disability or income replacement benefits paid;

      • Plaintiff’s employers for 5 years before accident;

      • Copies of bills;

      • Police report or other investigative report prepared by a government entity;

      • Copies of all recorded statements.

    • Initial Disclosures are due by Plaintiff within 14 days after Defendant’s Answer and Defendant’s Disclosures are due 28 days after Plaintiff’s Initial Disclosures;

 

  • Expert Disclosures.

    • Disclosures shall be provided without a specific request.

    • Disclosures shall contain the (1) name of the expert, (2) list of publications, (3) brief statement of testimony, (4) all data relied upon by the expert, and (5) compensation to be paid.

    • Once the disclosure is made, the other side may either depose the expert or elect a report – not both

    • Pre-Trial and/or pre-suit retention of experts are protected by work product doctrine by Rule 26(b)(5)

 

Fault Allocation/Comparative Negligence:

              

  • Utah is a modified comparative negligence state.  A plaintiff may not recover damages unless he/she is found less than 50% at fault.  U.C.A. §78B-5-818;

 

  • Fault may be allocated to non-parties so long as they are appropriately named in the Answer and/or in a Notice of Intent to Allocate Fault.  U.C.A. 78B-5-818(4)(a), 78B-5-821(4); U.R.C.P 9(l)

 

  • No defendant shall be liable to any person in an amount in excess of the proportion of fault attributed to that defendant.  U.C.A. §78B-5-818(3).

 

Statutes Of Limitation:

 

  • Within one (1) year for libel, slander, false imprisonment or seduction.  U.C.A. §78B-2-302;

 

  • Within two (2) years for wrongful death caused the wrongful act or neglect of another.  U.C.A. §78B-2-304;

 

  • Within three (3) years for trespass, or injury to real property, injury to personal property, fraud or mistake.  U.C.A. §78B-2-305.

 

  • Within three (3) years for claims based on breach of an insurance contract. U.C.A. §31A-21-313(1);

 

  • Within four (4) years for negligence and contracts not founded on written contracts. U.C.A. §78B-2-307;

 

  • Within six (6) years for claims based on breach of a written contract.  U.C.A. §78B-2-309;

 

  • The statute of repose in construction cases is nine (9) years.  U.C.A. § 78B-2-225;

 

  • There are many other unique limitation periods for certain actions and nuances to the limitations referred to above.

 

Jury Composition And Rules:

 

  • Juries are comprised of eight (8) members unless the case value is less than $20,000.  If the value is less than $20,000 then the parties are only entitled to a four (4) person jury (Four (4) person juries are very rare).  U.C.A. 78B-1-104;

 

  • Six (6) jurors, or three-fourths of the panel, must decide each question on the verdict form in order for the Plaintiff to prevail.   U.C.A. 78B-1-104.

 

  • Each side is given three (3) peremptory challenges.  This can be challenging in cases involving multiple defendants because those challenges must be split between the various defendants. U.R.C.P. 47(e).

 

  • Jurors pulled from driver license records and registered voters.

 

Collateral Source Rule:

 

  • Recovery is NOT reduced by amounts which the plaintiff receives from another source.  Generally, the only offset received will be for PIP benefits paid, but not for amounts paid by health insurers or other “collateral” sources.  DuBois v. Nye, 584 P.2d 823 (Utah 1978).

 

  • At trial, generally state court judges allow evidence of all medical expenses, even if those expenses were paid by a “collateral source”.  Thus, a Plaintiff is generally allowed to introduce the full amount of medical expenses “incurred”, not just the amounts “paid” by the collateral source.

 

Mandated Minimum Policy Limits For Motor Vehicle Operation:

 

  • Mandatory liability limits are 25/65.  UM/UIM coverage is mandatory and equals the liability limits.  PIP coverage is mandatory, with $3,000 minimum medical expense coverage.  

 

Minor Settlement: 

 

  • If the amount agreed upon is less than $10,000, the settlement can be accomplished by delivering the payment to (1) the minor (but only if he/she is married), (2) any person having custody, control or care of the minor and with whom the minor resides, or (3) a guardian of the minor.  U.C.A. §75-5-102.

 

  • If the amount agreed upon in greater than $10,000, court approval is required and a guardian or conservator is appointed to receive the funds. 

 

Attorney Fee Claims:

 

  • Attorney’s fees are only awarded if it can be shown that the fee is based on a contract term or is found in a specific statute.

 

Offer Of settlement:

 

  • An offer of settlement (formerly offers of judgment) is an offer made to resolve all claims in the action between the parties to the date of the offer, including costs, interest and, if attorney’s fees are permitted by law or contract, attorneys fees.  U.R.C.P. 68(a);

 

  • If the adjusted award (i.e. the amount awarded by the fact finder and the offeree’s costs and interests before the offer was made), is not more favorable than the offer, the offeror is not liable for costs, prejudgment interest or attorney fees incurred by the offeree after the offer and the offeree shall pay the offeror’s costs incurred after the offer. U.R.C.P. 68(b);

 

  • The offer shall be in writing, shall expressly identify Rule 68, be made more than ten (10) days before trial, remain open for at least ten (10) days; and be served on the offeree under Rule 5.  U.R.C.P. 68(c).

 

  • Acceptance of the offer shall be in writing and served on the offeror under Rule 5 and may be accompanied by a proposed judgment under Rule 58A. U.R.C.P. 68(c). 

 

  • Either party may file the offer.


Section 321 Arbitrations:

 

  • In automobile bodily injury cases the Plaintiff can elect to arbitrate, rather than litigate.  It is generally understood that this will streamline discovery, reduce costs, and obtain a quick resolution.  U.C.A. §31A-22-321.

 

  • This does not include UM/UIM motorist claims, punitive damages, or other extra-contractual claims.

 

  • By making the election to arbitrate, the Plaintiff limits his/her recovery to $50,000 and limits the Plaintiff’s ability to obtain a verdict beyond the policy limit.

 

Economic Loss Rule:

 

  • If the parties have a contract, there can be no economic loss damages awarded under a negligence theory.  U.C.A. §78B-4-513.

 

Inadmissibility of seat belt use:

 

  • Seat belt usage (or lack thereof) is not admissible.  Judges do not allow introduction of seat belt usage to prove causation or negligence.  U.C.A. §41-6a-1806(2).

 

PIP Threshold requirements:

 

  • A plaintiff may not present a claim for general damages arising out of personal injuries alleged to have been caused by an automobile accident unless he/she can prove one of the following enumerated categories of damages:

    • Death;

    • Dismemberment;

    • Permanent disability or permanent impairment based upon objective findings;

    • Permanent disfigurement; or

    • Medical expenses to a person in excess of $3,000.  U.C.A. §31A-22-309.

 

Dog bite liability:

 

  • Strict liability for owners and keepers of dogs. Every person owning or keeping a dog shall be liable in damage committed for injury by the dog and it shall not be necessary to allege or prove that the dog had a vicious disposition or that the owner or keeper knew that the dog was vicious or mischievous.  No “One Bite Rule” in Utah.  U.C.A. §18-1-1.

  • The injured person’s actions or negligence can be apportioned despite strict liability.

  • This rule only applies to dogs, not other domesticated animals (like cats).

 

EXPERIENCE | INTEGRITY | STRENGTH

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