Chapter 1 Damages

 
§1.01 Damages Arising out of Bodily Injury

 
[1] Types of Damages for Negligence Generally

 
[2] Consortium (Spousal and Filial)

 
[3] Loss of Wages of Non-Injured Spouse

 
[4] Impairment of Earning Capacity

 
[5] Distinction between General and Special Damages

 
[6] Future Damages

 
[7] Proof Generally

 
§1.02 Causation

 
[1] Mitigation of Damages

 
[2] Prior Condition—Aggravation

 
[3] Subsequent Accident Caused by Victim's Infirmities from First Accident

 
§1.03 Collateral Source Rule

 
§1.04 Damage to Property

 
[1] Loss of Use of Motor Vehicle

 
[2] Insurance Department Regulations Regarding Motor Vehicle Settlement

 
[3] Motor Vehicle Diminution of Value

 
§1.05 Punitive Damages

 
[1] Statutory Law Defining Punitive Conduct / Applicability to Insurers / Drivers

 
[2] "Knowing and Reckless Disregard" Standard for Intoxicated Drivers

 
[3] Assessment of Punitive Damages (Utah Case Law Prior to Campbell 2003)

 
[4] The Campbell 2003 Decision

 
[5] Utah Case Law after Campbell 2003

 
[6] Vicarious Liability for Punitive Damages

 
[7] Punitive Damages in Wrongful Death Actions

 
[8] Part of Punitive Damage Award Payable to State of Utah

 

 
Chapter 2 Evidence and Procedure

 
§2.01 Admissibility / Proof

 
[1] Crash Films

 
[2] Flight from Scene of Accident

 
[3] Fact of Liability Insurance

 
[4] Prior Settlements / Offer to Pay or Payment of Medical Bills

 
[5] Statement of Injured Person

 
[6] Surveillance Videos

 
[7] Tax Consequences of Personal Injury Award

 
[8] Testimony of Lay Witnesses With Respect to Distance and Speed

 
[9] Traffic Citations / Convictions / Traffic Accident Reports

 
[10] Welfare Payments to Prove Preexisting Medical Condition

 
[11] Prior Auto Accidents to Prove Likelihood of Auto Accident

 
[12] Seat Belt and Child Restraint Device Non-Usage

 
[13] American Trucking Association's Safety Guidelines Handbook

 
[14] Medical Bill Proof Requirements

 
[15] Annuity Calculations and Costs

 
[16] Accident Reconstruction Expert Testimony

 
[17] Ex parte Communications between Plaintiff Doctor and Defense Counsel

 
§2.02 Discoverability

 
[1] Insurance Company File

 
[2] Insurance Policy / Liability Limits

 
§2.03 Presumption / Judicial Notice

 
[1] Judicial Notice Regarding Vehicle Headlights

 
[2] Presumption of Due Care of Driver Where Driver Dies or Has Amnesia

 
[3] Presumption Upon Receipt of Fax with Fax Confirmation

 
§2.04 Procedure

 
[1] Garnishment of Liability Insurer's Obligation by Third Party

 
[2] Joinder of Insurance Companies in Actions Against Insured Tortfeasors and Uninsured Motorists

 
[3] Propriety of Default Judgment While Negotiating With Adjuster

 
[4] Service of Process on Insurance Company

 
[5] Service of Process on Nonresident Motorist or Absent Resident Motorist

 
[6] Preservation of Vehicle for Prima Facie Case of Auto Strict Liability

 
[7] Unavoidable Accident Jury Instruction

 
[8] Juror Voir Dire Regarding Juror Connection to Insurance Industry and Juror Knowledge of Tort Reform

 
§2.05 Availability of Traffic Accident Report Prior to Action

 
§2.06 Medical Provider Records Request

 

 
Chapter 3 Imputed Liability

 
§3.01 Agency / Master and Servant / Independent Contractor

 
[1] Importability of Workers' Compensation Law to Tort Law and Vice Versa

 
[2] Liability of Employer for Ride Sharing Arrangements

 
[3] Master and Servant Generally

 
[4] Right to Control and Independent Contractor

 
[5] Loaned Servant

 
[6] Scope and Course of Employment

 
[a] Test for Scope and Course of Employment

 
[b] Coming and Going Rule

 
[i] Dual Purpose Exception to Coming and Going Rule

 
[ii] Special Errand and Employer-Provided Transportation Exceptions to Coming and Going Rule

 
[iii] Scope and Course of Employment of Employee Using Employer Motor Vehicle

 
[7] Employer Liability for Independent Contractor: Retained Control / Non-Delegable Duty / Inherently Dangerous

 
[8] Presumption of Control and Agency Between Owner, Driver, and Spouse

 
[9] Family Member Agency and Motor Vehicles / Family Purpose Doctrine

 
§3.02 Bailment

 
§3.03 Joint Venture

 
[1] Definition of Joint Venture

 
[2] Joint Venture Arising out of Use of Motor Vehicle—Case Summaries

 
§3.04 Partnership

 
§3.05 Statutory Imputed Liability

 
[1] Personal Liability for Signing Drivers License Application of Minor

 
[2] Vehicle Owner's Liability for Permitting Minor to Operate Motor Vehicle

 
[3] Parents' Liability for Minor Damaging Motor Vehicle

 
§3.06 Unincorporated Association Liability

 

 
Chapter 4 Intoxication

 
§4.01 Motor Vehicle Operation Under the Influence of Alcohol / Criminal Statute / Proximate Cause / Evidence

 
§4.02 Dramshop Liability

 
[1] Utah Dramshop Statute

 
[2] Dramshop Case Law

 
[a] Pre-Dramshop Act Case Law

 
[b] Post Drampshop Act Case Law

 
[i] Dramshop Act Strict Liability / No Common Law Dramshop Cause of Action.

 
[ii] Exceptions to Rule of No Common Law Dramshop Action

 
§4.03 Common Law Dramshop Action by Person receiving Alcohol Against Provider

 
§4.04 Dramshop Action under Alcoholic Beverage Control Act

 
§4.05 Governmental Immunity

 

 
Chapter 5 Liens, Subrogation, and Reimbursement

 
§5.01 Attorney Lien

 
§5.02 Child Support Lien

 
§5.03 Crime Victims' Reparations Act Lien

 
§5.04 ERISA Reimbursement

 
[1] Federal Law Preemption of Self-Funded Plans

 
[2] Federal Law Preemption of Insured Plans

 
[3] Federal Law Preemption of Utah Law

 
[4] Federal Law Governing Self-Funded Plans

 
[5] Plan Enforcement of Reimbursement Provisions

 
§5.05 FEHBA Reimbursement

 
§5.06 Hospital Lien

 
§5.07 Medicaid Reimbursement

 
[1] Utah Medicaid Reimbursement Statute

 
[a] Nature of Medicaid's Right to Reimbursement

 
[b] ORS Notice of Lien / Effect of Lien / Right to Intervene and Maintain Action

 
[c] Recipient Obligation to Provide Notice to ORS / Effect on ORS

 
[d] Attorney Fees and Costs / ORS Collection Agreement / Attorney Misconduct

 
[e] Effect of ORS Refusal to Enter into Attorney Collection Agreement

 
[f] Attorney Trust Account Duties / Penalty for Non-Compliance

 
[g] Statute of Limitations Applicable to ORS Actions

 
[2] Abolition of Medicaid First Dollar Recovery by U.S. Supreme Court

 
[3] Validity of Utah Case Law after Statutory Revision and Ahlborn

 
[4] Constitutionality of Medicaid Reimbursement Statute

 
[5] Medicaid Lien Avoidance

 
§5.08 Medicare Reimbursement

 
[1] Regular Medicare Reimbursement

 
[a] Medicare Right of Reimbursement Against Any Personal Injury Recovery

 
[b] Attorney / Client Exposure to Reimbursement

 
[c] Medicare Not Required to Provide Notice

 
[d] Reductions for Damages Allocation, Comparative Negligence, and Causation

 
[e] Waiver of Lien for Hardship

 
[f] Attorney Fees and Costs

 
[g] Medicare Statute Preemption of State Law

 
[h] Applicability of Collateral Source Rule to Medicare

 
[i] Limitations on Reimbursement

 
[j] Medicare "Set-Aside"

 
[k] Insurer Statutory Duty to Provide Claim Information to Secretary of Health and Human Services (MMSEA)

 
[2] Medicare HMO and Choice Plan Reimbursement Rights

 
[a] Introduction

 
[b] Medicare HMO Statute

 
[c] Medicare Choice Statute

 
[d] Medicare HMO / Choice Preemption of State Law

 
§5.09 Utah Equitable Rules

 
[1] Equitable Subrogation

 
[2] Made Whole Rule

 
[a] Explanation of Made Whole Rule

 
[b] Contractual Modification of Made Whole Rule

 
[c] Utah Insurance Department Position on Made Whole Rule

 
[3] Effect of Release on Subrogor Where Liability Insurer Has Notice

 
[4] Common Fund Doctrine

 
§5.10 Workers' Compensation Reimbursement

 
[1] Workers' Compensation Reimbursement Statute

 
[2] Carrier Right to Intervene or Maintain Action

 
[3] Carrier Reimbursement Right for Employer Reinsurance Fund Payment

 
[4] Carrier Obligation to Pay Attorney Fees and Costs

 
[5] Carrier Reimbursement Right With Regard to Wrongful Death Recovery

 
[6] Necessity of Labor Commission Approval of Third-Party Settlements

 
[7] Carrier Reimbursement From UM / UIM Settlement

 
§5.11 Attorney and Medical Provider Consensual Liens / Notice of Assignment / Estoppel

 
§5.12 Public Employees Health Program (PEHP) Reimbursement

 

 
Chapter 6 Auto Accident Negligence

 
§6.01 Definition of Negligence Generally

 
§6.02 Comparative Negligence Statute

 
§6.03 Auto Passenger Comparative Negligence (formerly known as "Assumption of Risk")

 
[1] Scope and Cross Referencing

 
[2] Standard of Care of Passenger Generally / Assumption of Risk Doctrine Abolished

 
[3] Common Law Duties of Passengers

 
[4] Statutory Duties of Passengers

 
[5] Summaries of Cases Regarding Passenger Comparative Negligence

 
§6.04 Passenger Liability for Wrongful Action or Inaction

 
[1] Passenger Wrongful Failure to Act

 
[2] Passenger Wrongful Affirmative Action

 
§6.05 Key Left in Ignition Cases (Liability of Vehicle Owner or Operator)

 
§6.06 Applicable Standards of Care Regarding Minors Involved in Auto Accidents

 
[1] Standard of Care for Minor Operating Motor Vehicle

 
[2] Standard of Care for Adult Operating Motor Vehicle in Presence of Minors

 
[3] Standard of Care for Minor Pedestrian

 
§6.07 Negligent Supervision (Comparative Negligence of Parent of Injured Child Pedestrian)

 
§6.08 Negligent Entrustment of Motor Vehicle

 
§6.09 Negligent Infliction of Emotional Distress in Auto Accidents

 
§6.10 Proximate Cause

 
§6.11 Rescue from Auto Accident Aftermath

 
[1] Liability of Tortfeasor for Injured Lay Rescuer

 
[2] Liability of Tortfeasor for Injury to Professional Rescuer

 
[3] Good Samaritan Statute (Liability of Rescuer)

 
§6.12 Res Ipsa Loquitur / Applicability to Auto Accidents

 
[1] Introduction.

 
[2] Elements of Res Ipsa Loqitur

 
[3] Summaries of Auto Accident Cases Dealing with Res Ipsa Loquitur

 
§6.13 Right to Assume Due Care on Part of Other Drivers and Pedestrians

 
§6.14 Sudden Peril Rule

 
[1] Explanation of the Rule

 
[2] Summaries of Auto Accident Cases Involving Sudden Peril Rule

 
§6.15 Violation of Safety Statute Rule

 
§6.16 Spousal and Parental Tort Immunity

 
[1] Spousal Immumiy

 
[2] Parental Immunity

 
§6.17 Splitting Negligence Cause of Action in Auto Case (Bodily Injury / Property)

 

 
Chapter 7 Statute of Limitations

 
§7.01 Limitations for Specific Causes of Action

 
[1] Negligence

 
[2] Personal Injury Protection (PIP) Benefits

 
[3] Uninsured Motorist Coverage

 
[4] Underinsured Motorist Coverage

 
[5] Wrongful Death

 
[6] Products Liability

 
[7] Survival Actions

 
[8] Assault/Battery/Recklessness

 
§7.02 Defenses to Limitations

 
[1] Tolling—Minority and Incompetency

 
[2] Estoppel Against Insurance Company / Waiver

 
[3] Discovery Rule

 
§7.03 Limitations for Utah Governmental Entities

 
[1] Filing Notice of Claim and Complaint

 
[a] Introduction

 
[b] Time Periods for Filing Notice of Claim and Complaint

 
[c] Notice of Claim

 
[i] Notice Contents Generally

 
[ii] Brief Statement of the Facts

 
[iii] Nature of the Claim Asserted

 
[iv] Damages Incurred by the Claimant as Far as They Are Known

 
[d] Prerequisites for Claim Against Governmental Employee

 
[e] Delivery of Notice of Claim

 
[f] Governmental Official to Whom Notice of Claim Must Be Delivered

 
[2] Filing Notice of Claim With Public Transit District

 
[3] Notice of Claim Strict Compliance Standard

 
[a] Strict Compliance Standard and History

 
[b] Exceptions to Strict Compliance—Estoppel

 
[i] Estoppel Prior to 1998 Amendment

 
[ii] Estoppel After the 1998 Amendment: Rule of Wheeler v. McPherson

 
[iii] Estoppel after 2004 Revision of Governmental Immunity Act

 
[c] Exception to Strict Compliance—"Piggy Back" / "Pretty Strict Compliance"

 
[4] Tolling (Minority and Incompetency )

 
[5] Claims Against Governmental Entities for PIP Benefits

 
[6] Discovery Rule

 
§7.04 Insurance Department Regulations

 

 
Chapter 8 Statutory Coverages, No-Fault Act, and Threshold Law

 
§8.01 Liability Coverage Statutory Requirements

 
[1] Minimum Coverage Limits / Vehicles Required to Have Coverage

 
[2] Non-Resident Drivers

 
[3] Governmental Entities and Self-Insurers

 
[4] Required Liability Policy Provisions

 
[a] Introduction

 
[b] Persons Covered

 
[i] Named Insured

 
[ii] Permissive Users: Primary Permittee

 
[iii] Permissive Users: Secondary Permittee

 
[iv] Permissive Users: Passengers as Permissive Users

 
[v] Resident Relatives

 
[c] "Arising out of The Ownership, Maintenance or Use" Clause

 
[d] Step Down Coverage

 
[i] Permissive User

 
[ii] Household Exclusion

 
[iii] Auto Business Exclusion

 
[iv] Alcohol and Illegal Drug Exclusion

 
[v] Intentional Act Exclusion

 
[e] Unforeseeable Paralysis, Seizure, or Unconscious Condition

 
[f] Prorating with Other Liability Insurance

 
[g] Workers' Compensation Liability Exclusion

 
[h] Insurer's Right to Settle Claim / Duty to Defend / Subrogation Between Insurers

 
[i] Insurer's Right to Settle

 
[ii] Insurer's Duty to Defend

 
[i] Subrogation Between Insurers

 
[i] Subrogation Rights of Secondary Liability Carrier

 
[ii] Subrogation Rights Where Both Liability Carriers Contesting Coverage

 
[j] Defense of Lack of Cooperation

 
[k] Named Driver Exclusion

 
[l] Operator's Policy

 
[m] Care, Custody or Control Exclusion

 
[n] Liability Claimant with No PIP—Liability Claim Not to Be Reduced

 
[o] Arbitration of Auto Personal Injury Claims

 
[i] Claims between Family Members

 
[ii] Claims Not Involving Family Members

 
[p] Presumptive Personal Representative (Streamlined Wrongful Death Settlement)

 
[5] Auto Policies Exempt from Statutory Requirements

 
§8.02 Personal Injury Protection Coverage (PIP) Statutory Requirements

 
[1] Vehicles Required to Be Covered by PIP

 
[2] Political Entities / Self-Insurers / Nonresident Drivers Required to Have PIP

 
[3] Persons Covered and Not Covered by PIP

 
[4] Coverage—Motorcycle Owners / Operators / Passengers

 
[5] PIP Coverage Exclusions

 
[6] Effect of Workers' Compensation on PIP

 
[7] Primary PIP Coverage

 
[8] Stacking of PIP Coverage

 
[9] Assignment of PIP Medical Benefits by Insured to Medical Provider

 
[10] PIP Benefits

 
[a] Medical Expenses

 
[b] Loss of Income Benefit

 
[c] Loss of Services Benefit

 
[i] Statutory Law

 
[ii] Necessity of Expenses Actually Being Incurred

 
[iii] Availability of PIP Loss of Services Where No Employment Disability

 
[iv] Loss of Services Not limited to $20 for a Particular Day

 
[d] Death and Funeral Benefits

 
[11] Statutory Action for PIP Benefits Recovery / Attorney Fees / Interest

 
[12] Reimbursement Rights of PIP Insurers

 
[a] Personal Injury Protection (PIP) Reimbursement Statute

 
[b] PIP Reimbursement from PIP Insured's Personal Injury Settlement

 
[c] Exception to Rule of No PIP Reimbursement from Liability Settlement

 
[d] Availability of PIP Benefits After Execution of Liability Release

 
[e] PIP Reimbursement After Liability Litigation Commenced

 
[f] Summaries of PIP Reimbursement Cases

 
[g] PIP Reimbursement Rights When Liability Policy Limit Tendered

 
§8.03 No-Fault Threshold

 
[1] No-Fault Threshold Requirements Generally

 
[2] Permanent Disability or Impairment Based on Objective Findings

 
[3] Availability of Threshold Defense to Uninsured Motorist Defendant

 
[4] Applicability of Threshold to Uninsured Motorist Claims

 
[5] Applicability of Threshold to Motorcycle Owners / Operators / Passengers

 
[6] Effect of Meeting Threshold After Filing Liability Action

 
[7] Accumulating Medical Expenses Solely to Meet Threshold

 
[8] Constitutionality of Threshold

 
§8.04 Uninsured Motorist Coverage

 
[1] Personal Injury UM Coverage

 
[a] Persons Covered Under UM Coverage

 
[b] Definition of Uninsured Motor Vehicle

 
[c] Damages Recoverable ("Legally Entitled to Recover")

 
[d] Amount of UM Coverage Required

 
[i] Non-Governmental / Non-Self-Insured Entities

 
[ii] Self-Insured / Governmental Entities.

 
[iii] Entities Providing Transportation Services

 
[e] Workers' Compensation Subrogation Against UM Recovery

 
[f] Medical Payors' Subrogaton Against UM Recovery (Health Insurers, ERISA, Medicare, Medicaid and FEHBA)

 
[g] Felonies and Misdemeanors—Coverage Not Available

 
[h] Phantom Vehicles

 
[i] Stacking of UM Coverages

 
[i] Inter-Policy Stacking Governed by Statute

 
[ii] Inter-Policy Stacking Not Governed by Statute

 
[iii] Inter-Policy Stacking Within a Single Household

 
[iv] Intra-Policy Stacking

 
[j] Portability of UM Coverage / Public Policy Considerations

 
[i] Introduction

 
[ii] Newly Acquired / Replacement Vehicles

 
[iii] Non-Owned Vehicles

 
[iv] Motorcycles

 
[k] Arbitration of UM Claims

 
[l] Insured Action Against Uninsured Motorist—Joinder/Intervention of Carrier

 
[m] UM Coverage and Workers' Compensation Exclusive Remedy

 
[n] Coverage Afforded by Omnibus Clause of UM Commercial Auto Insurance

 
[o] Common Carriers and UM Coverage.

 
[p] Presumptive Personal Representative (Streamlined Wrongful Death Settlement)

 
[2] Uninsured Motorist Property Damage Coverage

 
§8.05 Underinsured Motorist Coverage

 
[1] Persons Covered under UIM Coverage

 
[2] Definition of Underinsured Motor Vehicle

 
[3] Damages Recoverable under UIM Coverage ("Legally Entitled to Recover")

 
[4] Amount of UIM Coverage Required

 
[a] Non-Governmental and Non-Self-Insured Entities

 
[b] Self-Insurers / Governmental Entities

 
[5] Workers' Compensation Subrogation Against UIM Recovery

 
[6] Medical Payors' Subrogaton Against UIM Recovery (Health Insurers, ERISA, Medicare, Medicaid, and FEHBA)

 
[7] Felonies and Misdemeanors—UIM Coverage Not Available

 
[8] UIM Coverage Set Off Against Liability Coverage

 
[9] Stacking of UIM Coverages

 
[a] Inter-Policy Stacking Governed by Statute

 
[b] Inter-Policy Stacking and Injured Pedestrians

 
[c] Inter-Policy Stacking Not Governed by Statute

 
[d] Inter-Policy Stacking within a Single Household

 
[e] Intra-Policy Stacking

 
[10] UIM Coverage—Date of Inception of the Loss

 
[11] UIM Claim Prerequisites to Settling Liability Claim/UIM Subrogation

 
[a] UIM Settlement Dilemma

 
[b] Rights of UIM Carrier and UIM Claimant

 
[c] Effect on UIM Claim Where No Notice Given to UIM Carrier

 
[12] Effect of Survival Statute on UIM Claims

 
[13] UIM Coverage for Wrongful Death of Non-Resident Relative

 
[14] Arbitration of UIM Claims

 
[15] Coverage Afforded by Omnibus Clause of UIM Commercial Auto Insurance

 
[16] Presumptive Personal Representative (Streamlined Wrongful Death Settlement

 
[17] Regular Use Exclusion (Non-Owned Vehicle)

 

 
Chapter 9 Conflict of Laws

 
§9.01 Utah's Conflict Rules Determine What Jurisdiction's Laws Will Apply

 
§9.02 Utah's Procedural Rules Apply

 
§9.03 Utah Law Determines the Characterization of the Action (Contract or Tort)

 
§9.04 Substantive Law of State with Most Significant Contacts Will Apply

 
§9.05 Most Significant Contacts Analysis for Tort Actions

 
§9.06 Most Significant Contacts Analysis for Contract Actions

 
§9.07 Auto Accident Cases Dealing with Conflict of Laws Issues

 
[1] Tort Action Cases

 
[2] Contract Action Cases

 

 
Chapter 10 Survival of Actions

 
§10.01 Utah Survival of Actions Statute

 
§10.02 UIM Claims of Heirs of Deceased

 
§10.03 Auto Accident Tortfeasor Dying Before Victim Dies

 
§10.04 Auto Accident Tortfeasor Who Dies Before the Accident

 
§10.05 Property Damage

 

 
Chapter 11 Settlements and Releases

 
§11.01 Third Party—Victim Releasing Tortfeasor

 
[1] Release Settling Liability Carrier's PIP Reimbursement Obligation

 
[2] Avoidance of Release Executed Shortly After Accident or Release From Hospital

 
[3] Insurance Department Regulations Governing Liability Releases

 
[4] General Rules of Release Construction

 
[5] Common Law Avoidance of Releases

 
[a] Mutual Mistake of Fact

 
[b] Mental Capacity

 
[c] Misrepresentation and Fraud

 
[d] Inadequate Consideration

 
[e] Ambiguity

 
[f] Standard of Proof for Release Avoidance

 
[6] Insurer Entitled to a Credit When Release Set Aside

 
[7] Liability Release Releasing Victim From Liability to Insured

 
[8] Vicarious Liability / Non-Vicarious Liability Releases—Special Rules of Construction

 
[a] Non-Vicarious Liability

 
[b] Vicarious Liability

 
[c] Trap for Unwary—Contrasting the Two Rules

 
§11.02 First Party—Insured Releasing Insurer

 
§11.03 Efficacy of Verbal Settlements

 
§11.04 Settlements with Minors

 
[1] Settlement of Minor Personal Injury Claim Not Exceeding $10,000

 
[2] Summary of Statutory Procedures for Court Approval off Minor Settlement

 
§11.05 Pre-Injury Releases

 
§11.06 Transfers of Structured Settlements

 

 
Chapter 12 Governmental Immunity, Duties, and Liabilities

 
§12.01 Notice of Claim

 
§12.02 Utah Governmental Immunity Analysis

 
[1] Governmental Immunity Analysis / History / Current Law

 
[2] Viability of Older Cases dealing with Specific Governmental Acts

 
[3] Governmental Discretionary Function Analysis

 
§12.03 Defective and Dangerous Roadways

 
[1] Waiver of Immunity for Dangerous Roads

 
[2] Duty of Government to Remove Obstructions to Motorists' View on Private Property

 
[3] Duty of Government to Maintain Safe Roads Generally

 
[4] Duty of Government to Maintain Street and Roadway Illumination

 
[5] Governmental Duty Regarding Traffic Control Design and Maintenance

 
[6] Governmental Duty with Regard to Roadway Design and Construction

 
[7] Governmental Duty to Maintain Roadway Manhole Covers

 
§12.04 Governmental Duties Regarding Sidewalk Construction and Maintenance

 
§12.05 Liability of Police Officers Directing Traffic / Public Duty Doctrine

 
§12.06 Government Employees in Auto Accidents (Including Emergency Vehicles)

 
§12.07 Governmental Duties Regarding Maintenance of Railroad Grade Crossings

 
§12.08 Firefighting Vehicles

 
§12.09 Damages Cap on Judgments Against Governmental Entity

 

 
Chapter 13 Wrongful Death

 
§13.01 Wrongful Death Statute

 
[1] Right of Action

 
[2] Heirs

 
§13.02 Nature of Wrongful Death Cause of Action; Standing to Bring Action

 
§13.03 Viability of Wrongful Death Claim Where Victim Signs Release or Allows Personal Injury Statute of Limitations to Run, Before Death

 
§13.04 Defenses Available to Tortfeasor in Wrongful Death Action

 
§13.05 Fiduciary Duty of Attorney and Personal Representative in Wrongful Death Case

 
[1] Attorney Fiduciary Duty

 
[2] Personal Representative Fiduciary Duty.

 
§13.06 Damages

 
[1] Death of Adult

 
[a] Method for Determining Damages Generally

 
[b] Standard of Proof for Pecuniary Loss

 
[c] Determining Loss of Each Heir

 
[d] Loss of Inheritance

 
[e] Factors for Assessing Damages

 
[2] Death of Child

 
§13.07 Wrongful Death of Unborn Child

 
§13.08 Property Damage and Wrongful Death

 
§13.09 Punitive Damages and Wrongful Death

 
§13.10 Governmental Immunity Act of Utah and Wrongful Death Claims

 
§13.11 Presumptive Personal Representative Authority to Settle Small Liability, UM, and UIM Death Claims

 
§13.12 Cross References

 

 
Chapter 14 Products Liability, Strict Liability, and UCC Implied Warranty

 
§14.01 Introduction

 
§14.02 Products Liability and UCC Implied Warranty Statutes

 
§14.03 Strict Liability Restatement Adopted by the Utah Supreme Court

 
§14.04 History of Utah Products Liability Law

 
§14.05 Elements of Strict Products Liability Action

 
§14.06 Pleading Negligence and Strict Liability in the Same Action

 
§14.07 Types of "Dangerously Defective Products" Recognized / Definition of "Product"

 
§14.08 Defenses to Strict Liability

 
§14.09 Inadequate Warnings Regarding Use of Product

 
§14.10 Applicability of Industry Standards to Product Liability

 
§14.11 Comparative Fault

 
§14.12 Strict Liability of Purely Passive Distributor

 
§14.13 Bystander Strict Liability Action

 
§14.14 Implied Warranty Under the Uniform Commercial Code

 
§14.15 Indemnification of Wholesalers, Retailers and Sellers

 
§14.16 Enhanced Injury Theory of Liability

 
§14.17 Cross-References

 

 
Chapter 15 Workers' Compensation Exclusive Remedy

 
§15.01 Introduction

 
[1] Exclusive Remedy Generally

 
[2] Scope of Section / Piercing Exclusive Remedy in Auto Accident Context

 
[3] Importability of Workers' Compensation Law to Tort Law and Vice Versa

 
§15.02 Definitions of Employee / Employer / Independent Contractor

 
[1] Statutory Definition of Employer and Independent Contractor

 
[2] Statutory Definition of Employee

 
[3] Common Law Definitions of Employer / Employee / Independent Contractor

 
§15.03 Statutory Definition of "Employer Exception"

 
§15.04 Failure of Employer to Procure Workers' Compensation Insurance

 
§15.05 Degree of Culpability of Employee and Employer / Intent to Cause Injury

 
§15.06 Dual Capacity Doctrine

 
§15.07 Loaned Servant / Fellow Servant / Special Employer

 
§15.08 "Accident Arising Out of and in the Course of Employment"

 
[1] Introduction

 
[2] Definition of "Accident"

 
[3] Meaning of Phrases "Arising Out of" and "in the Course of"

 
[4] Continuous Coverage Rule

 
[5] Going and Coming Rule / "Special Errand" and "Special Hazard" Exceptions

 
[6] Horseplay

 
[7] Employee Violation of Statute, Regulation, or Rule

 
[8] Personal Comfort Rule

 
[9] Employment Related Recreational Activities

 
[10] Arrival at Work Before Commencing Work

 
[11] Employee on Premises After Work Hours

 
§15.09 Employer's Indemnification of Third-Party Injuring Employee

 
§15.10 Minors Employed Contrary to Law

 
§15.11 PIP Benefits Claimed Against PIP Self-Insured Employer

 
§15.12 Negligent Infliction of Emotional Distress Claim Against Employer

 
§15.13 Employee Bad Faith and Tort Actions Against Workers' Compensation Carrier or Self-Insured Employer

 
§15.14 Employee UM / UIM Claim Arising Out of Negligence of Fellow Employee

 
§15.15 Employee UM / UIM Claim Against Employer's UM or UIM Coverage

 

 
Chapter 16 Insurer Extra Contractual Liability

 
§16.01 First Party Bad Faith

 
[1] Nature of Action

 
[2] Definition of "First-Party"

 
[a] Definition of "First-Party" Generally

 
[b] First Party / Third Party Status of Family Member Making Bad Faith Claim Arising Out of Inter-Family Liability Claims

 
[c] First Party / Third Party Status of Tort Victim Receiving Third-Party Benefits from Liability Policy, Making Bad Faith Claim Against Liability Insurer

 
[3] Implied Covenant of Good Faith and Fair Dealing

 
[4] Damages Recoverable for Implied Breach and Express Breach

 
[a] Implied Breach

 
[b] Proving Express Breach in Order to Maintain Implied Breach

 
[c] Express Breach

 
[d] Sufficiency of Proof of Damages Based on Mere Fact that Insured Has Been Sued.

 
[5] Other First-Party Causes of Action Against Insurer

 
[a] Tort of Violation of Public Policy Regarding PIP Coverage

 
[b] Cause of Action Availability for Insurer's Violation of Unfair Claims Practices Act, Insurance Department Regulations, Other Insurance Code Statutes

 
[c] Insurer's Intentional Infliction of Emotional Distress and Fraud

 
[6] Insurer's "Fairly Debatable" Defense

 
§16.02 Third Party Bad Faith

 
[1] Nature of Action

 
[2] Liability Insurer's Duty to Third Party Claimants

 
[a] Good Faith

 
[b] Unfair Claims Practices Act, Industry Standards, and Insurance Company Internal Policies

 
[3] Fiduciary Duty to Insured of Good Faith Handling of Liability Claim

 
[4] Duties of Liability Insurer to Its Insured Before Third-Party Files Lawsuit

 
[5] Duty to Defend

 
[6] Tripartite Relationship Between Defense Counsel / Insured / Insurer

 
[7] Damages Recoverable

 
[8] Other Causes of Action Available to Insured

 
[9] Pursuit of Damages After Excess Judgment

 

 
Chapter 17 Insurance Policy Topics

 
§17.01 Capacity to Contract

 
§17.02 Binders and Oral Contracts

 
§17.03 Insurable Interest / Title to Vehicle as Affecting Motor Vehicle Insurance Coverage / Seller's Liability for Accident After Sale of Vehicle

 
§17.04 Insurance Applications (Misrepresentation / Non-Disclosure)

 
§17.05 Cancellation of Policy

 
§17.06 Construction of Auto Insurance Policy

 
[1] Incorporation by Reference

 
[2] Validity of Policy Contrary to Statute

 
[3] Limitations of Risk

 
[4] Illegal Policy Limitations

 
[5] Applicability of Contract Law Construction Rules

 
[6] Ambiguities

 
[7] Reasonable Expectations Doctrine

 
[8] Efficacy of Exclusionary Clauses Generally

 
§17.07 Waiver and Estoppel Applied to Insurer

 
[1] Applicability of Waiver and Estoppel to Insurance Companies Generally

 
[2] Estoppel Defined / Application to Insurer

 
[3] Waiver Defined / Application to Insurer

 
[4] Insurance Fact Situations Involving Waiver and Estoppel

 
§17.08 Coverages of Accommodation for Liability, UM, and UIM Coverages

 
[1] Non-Owned Vehicle Coverage

 
[a] Definition and Purpose of Non-Owned Vehicle Coverage

 
[b] Not Available for Regular Use

 
[c] Permission of Owner

 
[d] Named Insured, Spouse, and Family Members

 
[e] Not Owned by the Insured

 
[2] Temporary Substitute or Replacement Vehicle Coverage

 
[3] Newly Acquired Vehicle Coverage

 
§17.09 Loss Payable Clause

 
§17.10 Theft Provision under Comprehensive Coverage

 
§17.11 Mistaken Policy Payments

 
§17.12 Notice of Claim—First and Third Party

 
§17.13 Proof of Loss

 
§17.14 Premium Payments

 
§17.15 Agent's Duty to Procure Insurance / Creation of Contract to Procure Insurance

 
§17.16 Rental Car Coverage

 

 
Chapter 18 Traffic Rules and Duties

 
§18.01 Animals on Roadway

 
§18.02 Audible Warning (Duty to Sound Horn)

 
§18.03 Backing of Vehicles

 
§18.04 Bicycles

 
[1] Parent Duty with Respect to Child Bicyclist

 
[2] Motor Vehicle Rules Applicable to Bicycles

 
[3] Bicycle Passengers / Other Vehicles Attached to Bicycle

 
[4] Duty of Bicyclist to Operate on Right-Hand Edge of Road

 
[5] Duties of Bicyclist Regarding Sidewalks and Pedestrians

 
[6] Rules Regarding Bicycle Left Turns.

 
[7] Turn Signals Required of Bicycle Operators

 
[8] Bicycle Cargo, Handlebars, Sirens, Whistles, and Brakes

 
[9] Bicycle Lamps and Reflective Material

 
[10] Bicycle Racing

 
[11] Parking of Bicycles

 
[12] Common Law Rights and Duties of Bicycle Operators

 
[13] Duty of Motor Vehicle Drivers to Child Bicyclist

 
[14] Ordinances Permitting Bicyclists to Operate Against Flow of Traffic

 
[15] Summaries of Selected Cases Involving Bicycles in Auto Accidents

 
§18.05 Brake Failure

 
§18.06 Vehicle Operation in Canyons

 
§18.07 Coasting of Vehicles

 
§18.08 Common Carriers

 
§18.09 Roadway Construction and Maintenance

 
[1] Governmental Entity Involved in Construction on Roadway

 
[2] Applicability of Traffic Code to Roadway Construction

 
[3] Duties of Drivers with Respect to Highway Maintenance Workers and Vehicles

 
[4] Duties of Contractors

 
[5] Contractor Liability under Public Nuisance Statute

 
§18.10 Duty to Maintain Control of Vehicle

 
§18.11 Crossing the Center Line—Duty to Drive on the Right Side of the Road

 
[1] Introduction and Scope of Section / Cross Referencing

 
[2] Statutory Law Governing Overtaking and Passing.

 
[3] Driving Left of Center Common Law Negligence

 
[4] Presumption of Negligence When Vehicle Crosses Center Line

 
[5] Right to Assume that Other Vehicles Will Not Cross the Center Line

 
[6] Duty of Driver When Another Driver Crosses Center Line / Sudden Peril Rule

 
[7] Definition of Center of Roadway

 
[8] Backing of Vehicle Across the Center Line

 
§18.12 Duty of Drivers and Vehicle Occupants After Auto Accident

 
§18.13 Emergency Vehicles

 
[1] Definition of Emergency Vehicle

 
[2] Privileges of Emergency Vehicles

 
[3] Duties of Emergency Vehicle Operators to Other Vehicles

 
[4] Duties of Other Drivers to Emergency Vehicles

 
[5] Duty of Drivers with Respect to Tow Trucks

 
[6] Duties of Blind Persons with Respect to Emergency Vehicles

 
[7] Duty of Vehicle Passengers Upon Approach of Emergency Vehicles

 
[8] Governmental Immunity

 
§18.14 Entering Public Roadway from Places Other than Another Public Roadway

 
§18.15 Equipment of Vehicle and Respective Duties

 
§18.16 Duty of Evasive Action

 
§18.17 Icy Roads as Sole Proximate Cause of Auto Accident

 
§18.18 Immediate Hazard

 
§18.19 Controlled Intersections

 
[1] Statutory Law of Semaphore Controlled Intersections

 
[2] Statutory Law of Stop Sign Controlled Intersections

 
[3] Statutory Law of Yield Sign Controlled Intersections

 
[4] Summaries of Selected Controlled Intersection Cases

 
§18.20 Uncontrolled Intersections

 
[1] Statutory Law Governing Uncontrolled Intersections

 
[2] Common Law Rules Applicable to Open Intersections

 
§18.21 Merging of Vehicles

 
§18.22 Motorcycles

 
[1] Operator's Sitting Position / Passengers / Packages and Bundles / Headgear

 
[2] Special Moving Traffic Rules Applicable to Motorcycles

 
[3] Motorcycle Equipment Requirements

 
[4] Selected Motorcycle Case Summaries

 
§18.23 Municipal Traffic Codes

 
[1] Introduction.

 
[2] Uniform Application of State Traffic Laws

 
[3] Regulatory Powers of Local Authorities

 
[4] Traffic Regulatory Restrictions on Local Authorities

 
[5] Case Law—Conflicts Between State Traffic Code and Local Ordinances

 
§18.24 Driving at Night or When Visibility Obscured

 
[1] Cross Referencing

 
[2] Duty to Display Vehicle Lights at Night and When Visibility Obscured

 
[3] Vehicles Operated in Combination / Loads Extending Beyond Rear of Vehicle

 
[4] Vehicles Parked at Night

 
[5] Duty to Have Sufficient Vehicle Lights Regardless of Statutory Requirements

 
[6] Dimming of Headlights / Headlight Intensity

 
[7] Proximate Causation and Vehicle Lights

 
[8] Dalley Rule—Speed and Distance of Headlight Illumination

 
[9] Judicial Notice That Oncoming Headlights Obscure Visibility

 
[10] Summaries of Selected Cases—Night Driving or When Visibility Obscured

 
§18.25 No Contact Accidents

 
§18.26 Objects Falling from Vehicles / Operator Duty to Secure Load

 
§18.27 Opening of Vehicle Door Prohibited under Certain Circumstances

 
§18.28 Overtaking and Passing

 
[1] General Rules for Overtaking and Passing

 
[2] Overtaking and Passing When More than One Lane in Same Direction

 
[3] Overtaking and Passing Left of Center

 
[4] Signs and Markings Prohibiting Overtaking and Passing

 
[5] Duty of Driver Making Left Turn to Driver Passing on the Left

 
[6] Passing on the Right

 
§18.29 Parked, Stalled, and Unattended Vehicles

 
[1] Introduction

 
[2] Statutory General Rules Governing Parking on the Roadway

 
[3] Parking on Two-Way and One-Way Roadways

 
[4] Prohibited Parking Areas

 
[5] Operator Responsibility When Leaving a Vehicle Unattended

 
[6] Parking and Hazard Lights

 
[7] Hillyard Rule—Moving Vehicle Collision with Stationary Vehicle on Roadway

 
[8] Duty of Wrecker Stopped on Roadway

 
§18.30 Motor Vehicle Passengers

 
§18.31 Pedestrians

 
[1] Statutory Definition of Pedestrian and Crosswalk

 
[2] Traffic Control Signals (Green / Red / Yellow) Applicability to Pedestrians

 
[3] Special Pedestrian Control Signals

 
[4] Pedestrian Statutory Right-of-Way

 
[5] Pedestrian Statutory Duty to Yield the Right-of-Way

 
[6] Statutorily Prohibited Activities of Pedestrians

 
[7] Statutory Duties of Bicyclists with Respect to Pedestrians

 
[8] Pedestrian Common Law Duties and Rights

 
[a] Pedestrian Common Law Right-of-Way

 
[b] Pedestrian Common Law Duty to Maintain a Proper Lookout

 
[c] Pedestrian Common Law Right to Assume Driver Will Exercise Due Care

 
[9] Landowner Duty Regarding Adjacent Public Property and Sidewalks

 
[10] Unsafe Route Rule

 
[11] Workman on Roadway—Degree of Watchfulness Required

 
[12] Summaries of Selected Auto / Pedestrian Cases

 
§18.32 Peace Officers

 
[1] Duty to Comply with Order of Peace Officer

 
[2] Direction of Peace Officer Superseding Traffic Control Devices

 
[3] Liability of Peace Officers Directing Traffic / Public Duty Doctrine

 
[4] Exculpation / Mitigation of Liability When Following Peace Officer's Traffic Directions

 
§18.33 Private Property

 
[1] Introduction / Scope of Section

 
[2] Applicability of State Traffic Code to Private Real Property

 
[3] Duty of Property Owner to Remove Obstructions to View of Motorists

 
[4] Limited Liability of Landowners Allowing Recreational Use of Property

 
[5] Duty of Private Landowner to Maintain Adjacent Sidewalks

 
[6] Premises Liability Law and Auto Accidents

 
§18.34 Vehicle Operator's Duty to Maintain a Proper Lookout

 
[1] Cross References.

 
[2] Duty to Maintain Proper Lookout Imposed on All Drivers

 
[3] What Constitutes a Proper Lookout

 
§18.35 Vehicle Racing

 
§18.36 Railroads

 
[1] Introduction and Scope of Section

 
[2] Statutory Duty of Railroad to Maintain Crossings and Adjacent Streets

 
[3] Statutory Duties of Operator of Train

 
[a] Duty of Train Operator to Provide Audible Warning

 
[i] Duty to Provide Audible Warning When Approaching Crossing

 
[ii] Audible Warning Required When Train Moving from Stationary Position

 
[iii] Audible Warning When Train Moving from Stationary Position

 
[b] Train Operator Duty to Display Headlights

 
[4] Statutory Limitations on Train Interference with Motor Vehicle Traffic

 
[5] Common Law Duties / Rights of Train Operator

 
[a] Train Right-of-Way—General Rule

 
[b] Operator Common Law Duty of Due Care Regardless of Statutory Duty

 
[c] Operator Right to Assume Motor Vehicle Operators Will Obey Law

 
[d] Train Operator Duty to Maintain Proper Lookout

 
[e] Train Operator Duty to Brake

 
[6] Statutory Duties of Motor Vehicle Operator at Railroad Crossing

 
[a] Vehicle Operator Not to Obstruct Railroad Crossing

 
[b] Vehicle Operator to Remove Vehicle from Track Upon Signal from Train

 
[c] Vehicle Operator Duty with Respect to Speed When Approaching Crossing

 
[d] Vehicle Operator Duty to Yield at Railroad Crossings

 
[7] Common Law Duties of Motor Vehicle Operator at Railroad Crossing

 
[8] Pedestrian Duty at Railroad Crossing

 
[9] Governmental Duties / Liabilities With Respect to Railroad Crossings

 
[a] Municipality Duties / Liabilities with Respect to Crossings

 
[b] Department of Transportation Duties / Liabilities Regarding Crossings

 
[10] Federal Preemption

 
§18.37 Rear-End Accidents

 
[1] Introduction and Cross References

 
[2] Following Too Closely Prohibited

 
[3] Requirements When Moving a Vehicle Right or Left on Roadway

 
[4] Duty to Signal Rear Vehicle When Stopping or Decreasing Speed

 
[5] Impeding or Blocking Traffic by Slow Speed Prohibited

 
[6] Rear End Accidents Where Lead Vehicle Negligent

 
[7] Selected Rear End Accident Case Summaries Where Lead Vehicle Negligent

 
[8] Rear End Accident Scenario: 1st Car Stops, 2nd Car Stops, But 3rd Car Rear-Ends 2nd Car (Can 1st Car Be Negligent?) / Case Law / Proximate Cause Issues

 
§18.38 Right-of-Way

 
§18.39 Road Rage

 
§18.40 Safety Zone

 
§18.41 Schools

 
[1] Reduced Speed School Zone / Speed Limit Violation Prima Facie Negligence

 
[2] Governmental Duties: School Buses / School Zones / Crossing Guards

 
[3] School Buses

 
[a] Definition of School Bus

 
[b] Equipment Requirements of School Buses

 
[c] Duties of School Bus Operator

 
[d] Duties of Motor Vehicle Operator in Presence of School Bus

 
§18.42 Driver Signaling Another Driver to Proceed Resulting in Auto Accident

 
§18.43 Speed and Speed Limit

 
[1] Cross References

 
[2] Maximum Speed Limits

 
[a] Limitations on Speed

 
[b] Negligence for Not Traveling Above Speed Limit

 
[3] Minimum Speed Limits / Impeding or Blocking Traffic

 
[4] Prima Facie Speed Limitations / Burden of Proof / Negligence

 
[5] Right to Assume that Disfavored Driver Will Decrease Speed

 
[6] Forfeiture of Right-of-Way for Speed Limit Violation

 
§18.44 Moving Vehicle from a Stationary Position

 
§18.45 Towing of Vehicles

 
§18.46 Lane Changes

 
§18.47 Left-Hand Turns

 
[1] Method and Manner of Making Left-Hand Turns

 
[2] Duty of Vehicle Making Left-Hand Turn to Yield Right-of-Way

 
[3] Duties of Oncoming Vehicle / Exculpatory Circumstances for Left Turner

 
§18.48 Right-Hand Turns

 
§18.49 "U" Turns

 
§18.50 Traffic Code Definitions

 
§18.51 Wireless Communication Device Use in Vehicle

 

 
Appendices

 
App. A Selected Utah Statutes (Specific to Auto Insurance)

 
App. B Selected Utah Insurance Department Regulations (Specific to Auto Claims Settlement Practices)

 

 
Table of Cases

 

 
Table of Statutes

 

 
Index