482 P.3d 831
Utah Ct. App.2021Background
- Brittney Turpin underwent surgery for an ovarian mass; morcellation was used and pathology later revealed cancer. She alleges negligent diagnosis and surgery by Valley Obstetrics & Gynecology and individual providers.
- Before filing suit, Turpin participated in the Utah Health Care Malpractice Act (DOPL) prelitigation panel as required by statute.
- Turpin filed a medical malpractice complaint in district court; defendants moved to dismiss under the statute of repose and lost; defendants answered and parties exchanged initial disclosures.
- Nearly six months after filing, Turpin moved to compel arbitration under a signed agreement providing mediation/arbitration as the forum for malpractice claims.
- Defendants opposed, invoking Chandler’s two‑part waiver test (substantial participation in litigation + prejudice) and arguing Turpin waived arbitration by filing suit; the district court ordered arbitration, finding Turpin had not substantially participated.
- The Court of Appeals affirmed on alternate grounds: Turpin’s filing of the complaint constituted substantial participation, but defendants failed to prove prejudice from the delay, so waiver was not established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for waiver determination | District court factual findings entitled to deference | Review for correctness where decision rests on documentary evidence | Reviewed for correctness (ASC Utah governs) |
| Whether Turpin substantially participated in litigation | Turpin did not engage in significant post‑filing litigation activities | Filing the complaint alone shows intent to litigate and thus substantial participation | Filing the complaint satisfies Chandler’s substantial‑participation prong (following Educators) |
| Whether defendants were prejudiced by delay | Turpin: defendants failed to show real harm from delay | Defendants: incurred fees/time at DOPL, gained informational advantage, lost discovery rights, and briefed statute‑of‑repose issues in court | Defendants failed to prove actual/significant prejudice; speculative or unrelated harms insufficient |
| Ultimate relief (waiver of arbitration) | Arbitration should be compelled under the agreement | Waiver should be found only if both prongs met | No waiver: substantial participation met but prejudice not shown; arbitration compelled |
Key Cases Cited
- Chandler v. Blue Cross Blue Shield of Utah, 833 P.2d 356 (Utah 1992) (articulated two‑part waiver test: substantial participation and prejudice)
- ASC Utah, Inc. v. Wolf Mountain Resorts, LC, 245 P.3d 184 (Utah 2010) (when waiver decision is based on documentary evidence, appellate review is for correctness)
- Educators Mut. Ins. Ass’n v. Evans, 258 P.3d 598 (Utah Ct. App. 2011) (holding that filing a complaint alone can satisfy the substantial‑participation prong)
- Central Fla. Invs., Inc. v. Parkwest Assocs., 40 P.3d 599 (Utah 2002) (reluctant or limited invocation of court processes can weigh against finding waiver)
- Pledger v. Gillespie, 982 P.2d 572 (Utah 1999) (prejudice may be shown by significant expenses incurred in district court that arbitration would not have entailed)
- Mounteer Enters., Inc. v. Homeowners Ass’n, 422 P.3d 809 (Utah 2018) (cast doubt on the broader role of prejudice in waiver doctrine; not decided here)