Fall 2016 Dewhirst DolvenLLC Attorneys at Law Legal Update Utah s Wyoming sColoradosTexas Plaintiffs appealed, seeking a trial de novo Utah at the district court. At trial, Defendant in brief stressed the multiple inconsistencies in Plaintiffs’ medical records as to how the DEWHIRST & DOLVEN accident occurred and as to the alleged UTAH OBTAINS THREE DEFENSE injuries. Upon bench trial, the district court • The Utah Supreme Court VERDICTS IN A TRIAL DE judge also held that the alleged injuries did judicially adopted a new cause of NOVO not match the vehicle’s minor scrape mark. action for filial consortium for Salt Lake City County: Dewhirst & As such, the judge rendered “no cause of losses sustained from a Dolven attorney Kyle Shoop obtained action” as to all three of the Plaintiffs’ minor-child’s serious injury. In three defense verdicts upon a trial de actions. adopting the cause of action, the novo to the bench. This matter involved Damian v. Nesbit, Court held that the same statutory alleged personal injuries from three Case No. 168900005, requirements for a spousal loss of Plaintiffs, who were brothers, after an Salt Lake County, Utah. consortium claim must be met. alleged impact between Plaintiffs’ .....................................Page 2 vehicle and a semi tractor-trailer driven by Defendant Ryan Nesbit. COLORADO In a construction defect case, the Plaintiffs initially filed their actions • against Defendant Nesbit in small claims Colorado Court of Appeals court. They alleged that the rear interpreted when “substantial driver-side of Defendant’s trailer completion” of a contractor’s impacted their vehicle as the truck made In This Issue work occurs under the builder’s a right turn onto northbound Bangerter statute of repose. The Court held Highway. Though Plaintiffs alleged that substantial completion is receiving soft tissue injuries from the ABOUT OUR FIRM.................Page 5 when the contractor “finishes impact, none of them received any UTAH working on the improvement,” medical care until over 70 days after the rather than when the certificate of alleged impact. However, one month after the accident, the driver of the D&D Obtains Three Defense occupancy is issued. Verdicts.....................................Page 1 Page 3 passenger vehicle, Plaintiff Wellington ..................................... Damian, provided a recorded statement Cause of Action for Loss of Filial WYOMING to the insurance carrier wherein he Consortium Adopted.................Page 2 • The Wyoming Supreme Court denied anyone in his vehicle having Savings Statute Does Not Apply adopted the notice-prejudice rule sustained any injuries. He also described to GIA.......................................Page 2 for denial of a claim due to the accident as “minor.” Indeed, the Water Damage Not Covered for untimely notice. That rule is: impact only left a scrape on the hood of Temporary Roof........................Page 2 “Before being entitled to deny the Plaintiffs’ vehicle. Based upon the directionality and the scrape and the COLORADO coverage based upon untimely point of impact of the vehicles, it was notice of an occurrence that also doubtful that the impact would have “Substantial Completion” Interpreted under SOR.................................Page 3 triggers coverage, an insurer must occurred without Plaintiffs’ vehicle be prejudiced, regardless of the rear-ending Defendant’s trailer. Formation of HOA under CCIOA express language of the policy.” Interpreted.................................Page 3 At the small claims trial, the judge ruled .....................................Page 4 Defense Verdict in Medical in Defendant’s favor as to all three of the Malpractice $10 Million Case...Page 3 Texas Plaintiffs’ claims. The judge found that • In a wrongful death case arising Plaintiffs would not have sustained their Wyoming from a drug overdose, the Texas alleged injuries from such a minor accident which resulted in only a scrape Notice-Prejudice Rule Adopted for Supreme Court held that a Insurance Claim Denial.............Page 4 malfunction in the 911 phone mark to the vehicle. As such, the judge rendered three “no cause” verdicts in Oil CGL Policy Is Valid Under system did not waive Defendant Nesbit’s favor. He did not Anti-Indemnity Statute.............Page 4 governmental immunity under the make a ruling as to fault for the accident, Texas Tort Claims Act. The as doing so was unnecessary based upon Texas malfunction was determined not his ruling of there being no damages Governmental Immunity Not to be the cause of the sustained. Waived in WD Case..................Page 5 death. Defense SJ Reversed in Premises .....................................Page 5 Liability Case............................Page 6 R Page 2 Dewhirst & Dolven’s Legal Update UTAH SUPREME COURT Plaintiffs’ lawsuit was brought under policy covered water damage to a house JUDICIALLY ADOPTS CAUSE the Governmental Immunity Act of without a complete roof. OF ACTION FOR LOSS OF Utah (“GIA”). As required by the GIA, Plaintiffs purchased a homeowner’s Plaintiffs submitted a “Notice of FILIAL CONSORTIUM insurance policy from Defendant Claim” to Provo City before filing an Farmers Insurance Exchange to cover Utah Supreme Court: After a action in court. Upon their claim being fourteen-year-old student at a high Plaintiffs’ primary residence. The denied, Plaintiffs filed their lawsuit in policy generally excluded from school suffered serious and court within the one year filing period life-threatening injuries in his drama coverage water intrusion into the house provided for in the GIA. However that with certain exceptions outlined in a class, his parents filed a lawsuit. His lawsuit was dismissed on the basis that parents filed as Plaintiffs, individually limited water coverage provision. As it was filed without the $300 bond relevant to the case, that provision did and as parents and guardians of the required under the GIA. student. They asserted negligence not cover water damage unless the claims and also sought to bring a By the time the court dismissed the water entered through an opening in the personal claim for loss of filial lawsuit, the one year filing period had roof caused by a windstorm. The consortium. For the claim, they had expired. Plaintiffs nonetheless filed a provision further specified that sought to recover damages for the loss second lawsuit (with the bond). temporary coverings were not to be of consortium, companionship, Defendant again moved to dismiss, but considered as roofs. services, comfort, society, and attention this time due to the lawsuit being Plaintiffs had begun replacing shingles of their minor child. The district court outside the one year filing period. In on the roof of their house. As Plaintiffs dismissed the loss of filial consortium response, Plaintiffs argued that the installed the last two rolls of claim, and the parents appealed. Savings Statute, U.C.A. § 78B-2-111, underlayment below new shingles, a excused their failure to file within the sudden and severe storm arrived, The issue before the Utah Supreme one year period. The Savings Clause Court was: whether Utah should bringing with it torrential rains. The generally allows a plaintiff to storm ripped the underlayment off the “judicially adopt a cause of action that commence a new action within one allows the parents of a tortuously roof, allowing the rain to penetrate the year of the dismissal of a previous house. This resulted in damage to both injured minor child to recover for loss action that was timely when filed, but of the child’s consortium.” The Court the structure and personal property which was dismissed for reasons other within the house. Plaintiffs filed an ruled: “we adopt a cause of action for than on the merits. loss of filial consortium allowing insurance claim, which Defendant parents to recover for loss of filial The district court granted Defendant’s denied under the terms of the policy. consortium due to tortious injury to a motion to dismiss, holding that claims At the district court, Plaintiffs provided minor child in cases where the injury against governmental entities are an expert affidavit stating that the meets the definition set forth in U.C.A. comprehensively governed by the GIA. underlayment layers were not a § 30-2-11, the spousal consortium As the GIA does not provide a savings temporary covering because those statute.” In doing so, the Court also provision, Plaintiffs’ claims were thus layers were to be installed on the roof stated: “Like the relationship between time-barred. permanently. However, that expert spouses, the relationship between The issue on appeal was thus whether recognized that the underlayment alone parents and a minor child is a legally the Savings Clause applies to actions was not a complete roof system without recognized relationship involving legal brought under the GIA. The Utah shingles. The district court therefore obligations. Like the relationship Supreme Court held: “We interpret the entered summary judgment in between spouses, it also tends to be a Governmental Immunity Act to Defendant’s favor, on the basis that particularly close relationship highly foreclose the applicability of the there was not a roof installed on the valued in society.” Savings Statute….” The Court noted house within the policy terms. Benda v. Roman Catholic Bishop that the GIA even includes a savings On appeal, the Utah Court of Appeals of Salt Lake City, provision of its own, and thus the recognized Utah’s policy of liberally 2016 UT 37 filing-period requirement under the construing policy terms in favor of the (Utah Supreme Court, GIA was exclusive of the Savings insured. Despite this, the Court filed August 25, 2016, Statute. determined that there was no ambiguity not yet released for publication Craig et al. v. Provo City, in the policy’s term “roof,” which in the permanent law reports). 2016 UT 40 (Utah Supreme Court, required a completed roof. As Plaintiffs’ filed August 26, 2016, expert even recognized there was not a not yet released for publication complete roof system installed, the UTAH SUPREME COURT in the permanent law reports).