*1 Shayne Hipwell, Sherry indi JENSEN

vidually heirs and on behalf of all other Ashley Shelly Hipwell, and Michele Shaylene Hipwell

Hipwell Kaycie by Shayne Hipwell guard

appearing litem, Plaintiffs, Appellants, and

ian ad

Cross-Appellees, HOSPITALS, INC., dba

IHC

Hospital, and Michael M.D. J. X, Defendants, through Ap I

and Does

pellees, Cross-Appellant.

No. 950164.

Supreme Court of Utah.

April 1997.

Opinion Granting Rehearing 22, 1997.

Aug.

Rehearing Sept. Denied *2 Mitchell, Stephen Burbidge, D. B.

Richard Johnson, City, Gary R. Lake and Simon Salt Kirkland, WA, Forgette, plaintiffs. H. Lavitt, Gilson, Kathy W. A. Salt James City, for Lake IHC. Williams, Frankenburg, Kurt M.

Elliott J. City, Healy. Salt Lake ZIMMERMAN, Chief Justice: summary judgment granted The trial court Inc., Hospitals, dba for defendants IHC McKay-Dee Hospital (“McKay-Dee”), and (“Dr. ruling Healy”), Michael J. M.D. Shayne Sherry plaintiffs Jensen and the medical was barred 78- malpractice statute of Hipwell 14-4 the Utah Jensen and Code. grant appealed summary 78-2-2(3)© of under section the Utah Code. to the trial court for We reverse remand of a relevant to resolution fact tolling of the of limitations. neces- A of the facts is detailed recitation complex legal issues sary to understand the “ presented appeal. we recite ‘Before facts, reviewing grant we note that facts and judgment, we view the drawn all reasonable inferences therefrom nonmoving most light favorable ” T, Koroulis, party.’ K & Inc. v. (Utah 1994) (quoting Higgins Salt 1993)). County, 855 P.2d Lake represent a medical moved McKay-Dee and Because later, attorney Healy days the facts in case. Three summary judgment, we state attorney Sharp, confirming a fee- Hip- wrote light most favorable to Jensen Shelly’s family arrangement. splitting well. involvement not aware of are, Shayne Hipwell Sherry Jensen and *3 relationship case or of Diane DeVries’ hus- respectively, surviving mother and Healy. Healy attorney with Dr. Shelly Hipwell. They seek to recov- band of attorney Healy attorney Sharp from letter Shelly’s wrongful death on behalf of er for attorney Healy makes clear that was commu- Shelly’s guardians legal themselves and attorney nicating Healy about “Shelly’s (collectively minor daughters two implies Sharp’s investigation and that attor- 12, 1988, day family”). December On investigation of Dr. ney Sharp’s delivery of her a induced before scheduled minimal. treatment was to be daughter, Shelly experienced severe second investigation, attorney Sharp emergency part As of his pain went to the abdominal Healy, being request a to Dr. seek- McKay-Dee Hospital. After sent document room of regarding home, McKay-Dee ing copy “a of all medical records Shelly returned to sent pro- delivery [Shelly] Hipwell.” Dr. did not a caesarian on December 13th for records, in- copy of all medical but baby. Shelly experienced various com- duce her delivery, produced a selective of documents McKay-Dee after the stead set plications at Attorney personally he reviewed. Shelly’s family claims were the result which Shelly’s Sharp copy com- negligence on the never received malpractice and Healy. By Shelly’s plete records from Dr. obstetri- medical and Dr. letter, copy 2Srd, attorney Sharp requested also Shelly trans- cian. December was On Shelly’s complete from University Hospital medical records of Utah ferred to the However, University Hospital, McKay-Dee Hospital. he subse- At further treatment. orally request and ulti- damage quently after a limited Shelly anoxic brain suffered only mately received limited medical records punctured her heart with physician resident 6,1989, attorney needle, coma, McKay-Dee. May leaving totally in a from On biopsy her Shelly’s family her case Sharp and settled permanently Shelly disabled. subse- $250,000, years against University Hospital for and a half quently died some three 27,1992. previously statutory effective later, amount of the May on University.1 damages against the cap on Shelly early was at Univer- In while mid-1989, coma, from In was transferred sity discussed Hospital brother, McKay-Dee Hospital, to which she had re- attorney Tim Shelly’s case with April discussion, University Hospital on attorney Healy turned from Healy. After this facility sister, Greenery, a rehabilitation Healys’ Di- to the had discussions with Pederson, Washington a so- State. Carol In the course of those discus- ane DeVries. . Greenery, attor- at the contacted sions, to call cial worker attorney asked DeVries 10, 1989, Forgette August on ney Shelly’s family and recommend Simon opinion of the request provide he an spe- who Roger Sharp, a Lake Salt Shelly’s case and evaluate the malpractice cases. DeV- settlement cialized in medical settling attorneys in the ease. family time. conduct of her Shelly’s for some ries had known time, Forgette’s to the file memos Shelly’s but did not At that contacted DeVries brothers, indicate that regarding possible new case Healys her that the were tell them Shelly’s liver had Forgette understood that she also Dr. she tell them that nor did delivery during her caesarian retained been lacerated Healy’s file clerk. 29th, Forgette 10, 1989, McKay-Dee. August February at On attorney Roger Sharp on Attorney Sharp decision in statutory cap ty. knew of our on down the 1. This court struck to, agreed damages as unconstitutional the settlement was Condemarin when 1, 1989, University May subject Condemarin v. on have been the and his actions in that case (Utah 1989), approxi- Hospital, litigation. Hipwell Sharp, P.2d 987 of (Utah 1993). Shelly’s family agreed mately days five $250,000 offered the Universi- settlement McKay-Dee. Pederson, him that cant amount business who assured contacted that, family’s permission discuss file she had The memo to the also indicates after mother, Sharp Forgette’s case. identified as Shel- un- meeting She ly’s attorney. day, That same Peder- Utah liver “had been derstanding was Forgette a letter to in which she son wrote damaged or while she was had burst” either stated, [Shelly’s “Ms. has mother] 20th, Forgette On October you opinion requested to offer copy of his Sharp requesting a file wrote to reached in this and advise settlement 14th, By Ms. Jensen Shelly. December family regarding any legal further signed a formal retainer and still had not might September On be indicated.” which Sharp’s file. Forgette had still not received 18th, Forgette pro- reviewed records date, Forgette On that drafted retainer asked ar- Pederson and that she vided Jensen, agreement pro- send to Ms. *4 Jensen, range meeting for a Ms. Shel- Forgette to handle claims vided that was understanding time ly’s mother. His at that University Hospital, Shelly’s that liver had been lacerat- was still attorney Roger Sharp, Hospital, McKay-Dee. Forgette’s memo to his ed at 26th, Forgette others. On December and/or file also indicates that he needed to deter- file, he portion Sharp’s but did received a bringing mine “the statute of limitations on February 15, not entire file until receive the against hospitals any claim attor- meantime, present plain- In the the 1990. neys.” (Shel- tiffs, Shayne Hipwell Ms. Jensen 1989, 19, Jensen, Shelly’s Ms. On October husband), ly’s signed Forgette’s written re- mother, Washington traveled to and met with 17,1990. agreement January on tainer Forgette to case. Ms. Jen- discuss Sharp’s file Forgette When received on orally Forgette on date and sen retained this 15th, attorney February he Hea- learned copy attorney Forgette request was to ly’s in the learned involvement case and that Sharp’s Forgette’s file. memo to file at the complete Sharp’s file not contain a set of did working time that he was indicates Healy McKay- records from Dr. doing who was some back- Utah Forgette Hospital. Dee not file a notice did investigations regarding Shelly’s ease ground in the instant of intent to commence suit case Hospital. University the settlement with against McKay-Dee Hospital and to “remain in the back- This wanted later, 16, years December until almost two ground” because he had worked with attor- 27, 1992, May Sharp signifi- Shelly Hipwell ney past in 1991.2 died on the received 29, 1992, July days provides than 120 the Utah Code lawsuit until more 2. Section 78-14-8 of may parties filing a medical not commence the notice of intent. Both after gives plaintiff prospec- "unless and until the as if Decem- before this court briefed the issues ninety days’ prior defendant ... at least tive 16, 1989, filing years date ber two before of intent commence an If the notice action.” intent, of the notice of was the relevant date for filing of the comes than 90 notice of intent less purposes. only We can of limitations period days for before end of the limitations Shelly's family's failure to assume that file its action, filing a medical the limita- days was within 120 of that date due to lawsuit period days "shall he extended to 120 tion having prelitigation request filed a for re- Further, notice." the date service of waiting panel's for decision. view and How- intent, days filing a notice of within ever, we find no indication of this in record. request prelitigation plaintiff must for submit a family prelitigation Shelly's did If not file a re- panel review. See Utah Code Ann. 78-14- filing request, more view of the lawsuit than 12(l)(c)(2)(a). Munsey, v. see But Gramlich filing days notice of intent after of the (Utah 1992) (holding may that action to the be fatal entire suit. Millett request to file not be dismissed for failure (Utah 1980) Corp., Clinic 609 P.2d 934 Clark days prelitigation notice of review within (holding that where of intent was filed less notice intent). provides upon That also section period days running of limitations review, than 90 request filing prelitigation the stat- days was not within 120 and lawsuit filed days until 60 after the ute of limitations is tolled intent, properly panel opinion. filing prelitigation its Code notice of suit was dis- issues Utah 78-14-12(3). missed). §Ann. We do not address this issue because it presented to us. filed We note that its notice of 1991, 16, but did not file its intent on December separate claims proceed on their allowed to complaint in this suit Forgette filed fraud, governed are 29, common law which July three-year of limitations. We complete dis- allowing parties to After reject claims. both granted covery, court the trial McKay-Dee on Shelly’s family’s Returning depth 1995, two-year ruling February concerning limi- argument first mal- governing medical of limitations wrongful death applies to their tations 78-14-4 section practice actions contained reasons that because claims: run December Code had of the Utah death, -wrongful section 78- this is a claim for intent. his notice of Forgette filed 12-28(2) Code, wrongful governs of the family makes a series of appeal, Shelly’s On limitations, death, applicable statute of is the below. arguments, which are summarized Malpractice the Medical Act stat- rather than contained section 78-14- ute of limitations First, Shelly’s family contends Shelly’s family held. as the trial court wrongful death statute 78-12-28(2) argues limit Code, further applies to their begin run does not They argue death statute wrongful death claims. years until the decedent’s death. barred until two their claims cannot be after death because with two statutes we are faced When *5 begin to limitations does not death statute of subject, we purport to cover the same that In the alter- run until the decedent’s death. legislature’s intent as determine the seek to native, mal- they argue that if the medical this, doing applies. In we follow to which contained in practice statute of limitations construction, statutory which general rules of applies cases section 78-14-4 of Code legis provide both that “the best evidence malpractice, medical wrongful death due to plain language of the intent is the lative two-year period it contains should Co., statute,” 853 Sullivan v. Scoular Grain death. We begin to run until the decedent’s (Utah 1993) 877, (citing Jensen v. P.2d reject both these claims. Care, Inc., Health 679 P.2d Intermountain Second, Shelly’s family asserts that “ (Utah 1984)), 903, ‘a and that more of limitations on both running of the statute of a more specific governs instead statute (which injury sur- Shelly’s personal claims ” Baritault v. Salt Lake general statute.’ De are now asserted her vived her death and (Utah 1996) 743, 748 City Corp., 913 P.2d family) wrongful death and their Martin, Energy v. (quoting Pan of Dr. al- be tolled because should 1991) (citations omitted)). (Utah 1142, 1145 concealment of the facts leged fraudulent Act’s Malpractice In this the Medical grounded. The upon their claims are legislative intent to language plain indicates Shelly’s family’s oral that trial court ruled such as apply to claims have the statute 19, attorney Forgette on October retention of bring. seeks ones filing years more than two intent, that For- “demonstrated the notice Malpractice Care The Utah Health whereby he possession of facts gette was in malpractice ac provides, “No specifically Act [Shelly] or have known knew should may brought unless it is com tion ... be possibly or Hipwell’s condition was caused plaintiff years or two after menced within McKay- part of by negligence on the caused injury.” ... Utah patient discovers Healy.” conclude Hospital Dee We Act “mal §Ann. The defines Code 78-14-4. disputed issue of fact that this is a in to which the Act was practice actions” judgment. precludes against apply “any action tended to contract, provider, care whether Third, family argues that health death, tort, warranty, wrongful breach of children should be allowed Hipwell’s minor inju otherwise, alleged personal upon wrongful based death be- proceed with claims arising care relating out of health ries to or minority tolled the stat- the children’s cause Last, have been ren which should rendered or as to their claims. ute of limitations provider.” care the health family argues should be dered 1989) added). 78-14-8(14) Clearly, County, (emphasis § here (comparative negligence). Health The legislature intended that the Utah apply Act to actions for Malpractice separate the death Care is we should whether injuries upon personal wrongful based per- death wrong sufficiently to from causative Further, malpractice. arising out of medical action where the dece- wrongful mit a death specific general is more than injury had cause personal dent’s limitations, apply- wrongful death de- the time of death. We been barred at wrongful ing only to actions as it does death adopt a rule. cline such malpractice. There- arising out of medical fore, we hold authorities one of the foremost As malpractice ac- governing observed, ratio of torts has law wrongful this action death tions covers barring the heirs underlying nale the rule malpractice. arising out of medical wrongful after the bringing death suit argues

Shelly’s family next if the med- un injured brought suit on the patient has governs of limitations ical injury action that “the derlying personal death, the event their claims for merely injured is not a conduit individual running begins of the statute is others, his own support he is master of The death. decedent’s may the case or win or claim and he settle provides a medical statute of limitations injury own even lose a on his brought action must be “within dependent him.” though upon others be plaintiff or years patient two after the discov- al., Page Prosser and Keeton W. Keeton et ers, through the use of reasonable dili- (5th § ed. on the Law Torts gence injury.” have discovered the should 1984). majority of states refuses to 78-14-4(1) (emphasis add- Utah Ann. Code proceed allow heirs to a decedent’s ed). “injury” argues that the after the has death suit decedent *6 medi- wrongful arising in a death case out of injury personal case or won settled his or her not the itself cal is dying. Id. Given or lost a is, rather, They argue the death. but rationale, given and that the underlying the there can be cause of action because any of is purpose core of limitations occurs, wrongful until death the stat- death right compel of a within a reason to exercise ute limitations on their claims cannot be- of claims, of evi able time to avoid stale loss Shelly’s gin run until death. to dence, memories, Horton v. Gold and faded wrongful We have held an.action P.2d Daughter, miner’s accruing in independent death an is 1989), impose see no reason to a different we deceased, Wagoner v. the heirs of the Van a regarding rule the heirs’ maintenance of R.R., 189, 186 112 Utah Union Pac. injured wrongful patient an death suit where (1947). conceptually compatible This is has to let the statute of limitations chosen Shelly’s family’s right to with assertion of a injury underlying personal run on any proceed independent analysis of of Shel settling litigating or the claim. rather than ly’s rights physicians. her predeath Therefore, hold that death we However, entirely separated the have not arising malpractice, of medical out right because the heirs’ decedent’s 78- applicable statute of limitations is section major part rights right is in based on heirs’ Code, begins to 14-4 of and the statute emotional, support, financial both or, “patient run at the time the discovers According run them from the deceased. to diligence through of reasonable the use ly, death we have held injury, whichever should have discovered underlying on cause of action is based occurs,” meaning patient the time the first may only the decedent wrong done to have discovered the med discovers or should proceed subject to at least of the de some Thus, Shelly’s injury. fami ical that would have been available fenses ly’s wrongful claims are barred death lived her had she to maintain decedent unless, See, e.g., Lake we discuss own Kelson v. Salt action. below, fraudulent Id. It is was tolled for some rea- concealment. this as- pect son.3 of fraudulent concealment that is in the issue instant case. Notwithstanding the claims, Shelly’s governing Applying the facts of case to these family argues they are entitled main- to requirements, Shelly’s family’s argument the statute limi- tain these actions because (i) Healy run must as follows: Dr. was in a Healy attorney tations was Dr. tolled superior position knowledge and was the sufficiently long attorney fraud trust; beneficiary family’s her timely. Forgette’s intent was Dis- notice of (ii) superior knowledge position requires position this claim rather in- duty created a material trust to disclose facts complex law depth of fraud- discussion (iii) care; regarding Shelly’s Healy Dr. knew ulent concealment. attorney of his brother’s with involvement requires concealment that one Fraudulent Sharp cursory and knew of the nature of legal duty obligation to communi- or attorney Sharp’s investigation but did not certain silent or cate facts remain otherwise Shelly’s family or, disclose these facts to act to facts known him. conceal material alternatively, them from concealed (1968). § 145 Fraud & Deceit Am.Jur.2d alleged to divert attention from his duty obligation arise from a Such (iv) malpractice; knew that Shel- relationship parties, of trust between ly’s family rely Sharp’s would power inequality knowledge or between investigation any malpractice to uncover parties, attendant circumstances or other part, duty thus creating on his indicating party’s reliance. Id. silence the facts of his association with at- disclose fraud, i.e., must amount silence under (v) manner, torneys Sharp; in this amount to an affirmation circumstances must position influence used his things state of exists does not attorney Sharp his brother divert exist, party uninformed must be family’s away attention from his care deprived as if a positive to the same extent Shelly, thereby preventing them from dis- assertion Id. “[c]on- had been made. Such covering constituting alleged becomes cealment nondisclosure fraudu- malpractice. only existing lent there is an fact or argument Once this is reduced its basic party charged

condition ... which the elements, it is Sharp’s clear that duty Making under to disclose.” use misleads, investigation to start cannot be used *7 of a device some trick or con- that running against Shelly’s of suspicion to exclude limitations trivance that is intended may whether Dr. prevent inquiry, and also to claims.4 What is not as clear is amount personal Shelly's argues they doing expired, family that allowed for so had her 3. also are enti- death, injury proceed Shelly’s personal inju- cause did not survive her tled to with of action bring ry/medical and thus her cannot personal as her survival claims representatives the claim. heirs under survival and/or provide statutes. The survival statutes that Healy argue McKay-Dee attorney Dr. that and person's personal injury does deceased Sharp’s investigation Healy McKay- Dr. of dies, person but not abate when that rather sur- Hospital early triggered Dee the statute person's by brought be vives the death and of limitations to medical claims as representatives personal the deceased's or heirs. McKay-Dee. Healy Dr. We decline However, § See Utah Ann. 78-11-12. if Code they logic to follow this the facts as are on death, brought person suit before the has not her general presented principles to under us. While personal may bring representatives or heirs her law, agent agency knowledge of an is to be the only person if before the suit the died time al- imputed that, principal, to the it is well established expired, bringing had lowed for suit and then agent the in the where has interests transac- year they bring per- must within one the suit principal's, adverse or where the tion to the son’s death. id. 78-12-37. agent parties whose colludes with third interests interests, statute, principal's adverse to knowl- any Absent to toll the the two- are edge the reason (cid:127) imputed governing year Shelly Hip- will not be to facts at issue of limitations principal. Agency § malpractice/personal injury See 3 Am.Jur.2d well's medical case, claims, 78-14-4, (1986). attorney Sharp's by the In the fee- had run time she instant agreement attorney Healy bring splitting Shelly and the died. If did not suit the time directly paral- The error alleged fraudulent concealment was committed here tolling sufficient to continue the statute of the trial lels that made court Berenda Shelly’s family 1996). retained once at- Langford, P.2d 45 In torney fall Forgette in the of 1989. As noted Berenda, specifically we stated: above, they contends that had application this legal [of The rule fraud- suspect facts have to that could led them any particular ulent set of concealment] Healy malpractice by Dr. necessarily facts is left to trial matter February they until when discovered fact_ ex- [W]e courts and finders of among Healy, relationships attorney Dr. acknowledge weighing plicitly rea- DeVries, Sharp. Diane plaintiffs conduct in sonableness of contrast, In Dr. contends light steps of the defendant’s to conceal Forgette McKay- considered type of action cause necessitates potential in a Dee defendants preclude summary findings factual on behalf as suit judgment in all but clearest of cases. 14, 1989, early as December as evidenced Thus, summary judgment appropriate agreement prepared his retainer on that only opposite fall date, when the facts on two which included references to (i) family presented ends of a continuum: either factual attorney Forgette’s affidavit as evidence that so are clear that reasonable facts Healy McKay-Dee he included Dr. disagree persons could not about un- Shelly’s family agreement retainer derlying application facts or about the merely to all the but was re- “cover bases” governing legal standard to the facts solely investigate legal malpractice tained (ii) underlying allega- or when the facts attorney Sharp in settling on the tion of fraudulent concealment are so tenu- Hospital against University ous, vague, insufficiently established punctured her heart. a genuine fail to raise issue of made what amounts to concealment, trial court material fact as to with the of law finding mixed of fact conclusion matter result that the fails as a evidence, wit, disputed Forgette’s law. clearly “oral of October retention Berenda, 914 P.2d at 53-54. In that Forgette posses was in demonstrated plaintiffs part- held that to his letters whereby sion of he knew or should have reflecting suspi- plaintiffs ner/defendant [Shelly] Hipwell’s known that condition was partner misappropriating cion that was by negligence possibly caused or caused partnership were insufficient to under- assets part McKay-Dee Hospital and Dr. finding plaintiff lie a trial court that the added.) Healy.” (Emphasis finding This duty inquiries, make under which would inappropriate and conclusion is on a motion discoveiy have led of the cause of action. “Summary summary judgment. judg equally sup- Id. We found letter only genuine appropriate ment is when no ported plaintiffs contention he *8 moving issues material fact exist and the suspicions his voiced the letters an party is a matter entitled to as of if attempt company to find out the “was K & T, Inc., (citing law.” at 626-27 really broke.” Id. We said that “while it 56(c); Higgins, R. P. 855 P.2d at Utah Civ. “ call,’ may agree ... be ‘a cannot 235). close ... the ‘We determine whether trial law, that, as a of matter the two letters correctly court ... held there were no ” [plaintiff] demonstrate that have disputed (quot should sus- issues of material fact.’ Id. or, State, pected wrongdoing more im- ing [defendant’s] Ferree 1989)). Here, inquiry portantly, reasonably the trial court erred. that an would Therefore,

implication attorney Shelly Hipwell’s. Healy's to verse to his letter investi- Sharp investigation Healy’s gation Healy Sharp's of of and his of Dr. Dr. consideration Dr. Healy potential care of was to be minimal indicate that as defendants in was, least, acting attorney Sharp cannot at the in con- be used to start the running Shelly's parties of cert with whose interests were ad- statute limitations claims. third of her death.5 discovery misappropria- guardian the time The of the have led wrongful provides: death statute tion.” at 55. person the not minor is When death of The the trier fact issue before neglect wrongful act or caused the attorney Forgette case is dis this whether another, heirs, personal repre- his his or reasonably or should have discover covered heirs, may of his sentatives the benefit legal injury Shelly Hipwell ed the done to damages against an maintain action for the words, In other December person causing the death.... such If jury the whether facts in must determine person guardian at the adult has a time of this case that Dr. indicate fraudulent death, only can his one action be main- prevented Shelly’s concealment somehow injury tained to or death such who, family, by retaining Forgette, person, may brought by and such action be Healy of Dr. had defeated the collusion personal representatives either the of such attorney Sharp, inquir his brother and person, adult deceased for the benefit of ing into the of medical possibility heirs, guardian or such part McKay-Dee. on the Dr. of the heirs.... benefit The becomes: Would reasonable (emphasis § Code Ann. Utah 78-11-7 add- attorney, presented the facts that attor ed). clearly provides The thus that if ney Forgette in December of knew only the guardian appointed, per- has been investigating a have considered medical mal representative guardian bring sonal practice McKay- case longer and the suit heirs are entitled to genuine Dee? This issue material is case, Shayne maintain an In this action. fact, summary judgment in precludes appointed Hipwell Sherry were Therefore, this ease. we remand the trial Shelly’s guardians. Under statute’s issue, court on the outcome which will plain language, Shelly’s were children Shelly’s family is determine whether entitled bring entitled to action for her proceed on both their survival claims and death, tolling and the statute becomes irrele-

their death claims. as the no claims. vant children had Shelly’s argument family’s next is argument, family a final As though bars even the statute limitations two-year malprac to avoid seeks plaintiffs, Shelly’s the adult children were by bringing tice statute of their injury minors at time of her death three-year fraud claim within the and, 78-12-36, therefore, tolling section During pendency of the limitations. liti statute, play prevented came into below, gation amended their running statute of limitations from on their fraud. complaint allege common law Shel ly’s family argues that the statute limita 78-12-26(3), fraud, governs argument This because chil tions for fails claims, years giving them three tolling dren’s not fit within these fraud situation does provides, from the time con statute’s terms. Section 78-12-36 discovered stituting bring person bring “If a an action ... fraud in which to entitled accrued, ruled that section at the time the cause of action action. trial court 78- [i] 4(l)(b), minority mentally age either under the 14— legal guardian, governed fami incompetent without a [ii] Alternatively, disability ly’s claims for the time of is not a of the fraud. court three-year applies, if commencement held that time limited for the (brack Ann. 78-12-36 established sufficient is action.” Utah Code had *9 added). Shelly’s sues of fact to withstand eted material children were material Shelly’s bring wrongful action for on their fraud claims. not entitled to prong of the first of appointed death had an seeks reversal because though separate the of had run on 5. A we do not address is statute limitations Shelly’s injury by tolling underlying personal claims applied the would have to the whether statute she save the death even time died.' children’s claims 336 have been holding, care rendered or which should uphold by provider.” of the health

seek reversal second. We the rendered the care 78-14-3(14). Thus, ruling malprac- that § trial court’s the medical Utah Code Ann. governs tice statute of limitations two-year act’s of malpractice medical statute claims, family’s fraud we need reach con- applies cases of fraudulent limitations to ruling. the second arising malpractice. out of medical cealment above, As stated when faced with two contrast, three-year of In fraud statute purport to statutes that cover the same sub 78-12-26, any applies to ject, duty legis primary our “is to determine ground “for of fraud.” action relief on intent, legis lative and the evidence of best far fraud is thus The statute limitations plain language lative intent act, malpractice medical broader than the Sullivan, A statute.” 853 P.2d at 879. set statutory pro- and our rules of construction construction, statutory rule tled specific malprac- that the more medical vide intent, legislative pro helps us determine applies general tice act instead the more specific .governs vides “a more that limitations. fraud statute of general instead De of a more statute.” Bar a family argues that it has made itault, (citation omitted). P.2d at 748 913 a fraud general fraud claim and constructive malpractice The medical limita from, to, their claim addition and distinct two-year provides bringing limit tions a discussed claims concealment fraudulent malpractice medical actions. The statute in However, nothing in above. we can find rule, discovery providing cludes a allegation their of fraud or fraud constructive period begin does not any way is in different their claims from discovers, “patient through run until allega- of fraudulent concealment. All the diligence the use of reasonable should have by Shelly’s family raised tions surround injury, discovered the whichever first oc claim that Dr. to divert acted 78-14-4(1). Ann. curs.” Utah In Code family’s away alleged from mal- attention Utah, discovery judi rule includes the practice duty he had a to disclose cially doctrine of fraudulent created conceal relationship attorneys of his facts Berenda, ment. 914 P.2d at 51. The Sharp. only damages arising The out is a fraudulent concealment doctrine mecha Shelly’s family’s con- fraud and whereby, plaintiff nism “can avoid the full possibility relate to structive fraud discovery, making operation by of the rule prevented discovering were prima showing of facie fraudulent conceal mal- constituting facts their claim for medical demonstrating given ment then there practice. acknowledge While we actions, plaintiff a reasonable defendant’s fraud be cases where doctor commits would not have discovered the earlier.” patient way in a not be that would statute of limi medical by covered act’s tations, discovery rule and with its provision, fraudulent this is not doctrine, concealment ap rule’s fraudulent concealment alleged specific a case. such Given plies every “malpractice action above, agree in this we cannot provider.” health care As noted family’s anything claim amounts to “malpractice fraud statute defines than more or is different from a claim provider” health care include actions for upon malprac- alleged personal fraudulent concealment medical death “based injuries Department relating arising to or out of tice.6 See v. Fin. health Gillman reading inadequately claims that this decline address this issue as it is Gen., right op- statutes violate their would researched and briefed. See Walker v. U.S. uniform I, Inc., 903, Butler, eration under article section 24 of the (Utah 1996); of laws 916 P.2d that, They argue Utah read as Constitution. out- Corp. Pipeline Crockett & Dev. Walsh v. Pinecrest above, lined cre- 1995); Co., (Utah Operating P.2d people, two defrauded ates classes of those Wareham, State providers health and those defrauded care Tools, 1989); Fishing Inc. v. Graco & Rental others, provides a shorter statute of limita- Inc., Exploration, Ironwood than the latter. tions the former We

337 (Utah 1989) 506, Inst., 509, uphold address we sum- We whether should P.2d 511-12 attempts mary claim for dam in favor of defendant (rejecting to recast regulators’ licensing ages arising deci McKay-Dee Hospital (“McKay-Dee”) out be- govern negligence to avoid Sherry sion as claim plaintiffs Shayne Hipwell cause and immunity). mental wrongful death action Jensen’s McKay-Dee mal- barred the medical was conclusion, In we hold that fami- practice statute of’ limitations. See Utah governed by ly’s wrongful claims are death opinion In prior §Ann. our Code 78-14-4. two-year of limitations for medi- case, in this reversed the trial court’s we in cal contained section actions summary judgment all defen- grant of as to further con- 78-14-4 of the Utah Code. We and on the of whether dants remanded issue period starts run- clude that the limitations (“Dr. Healy”) Healy’s defendant Michael J. discovers, ning patient plaintiff collaborating alleged plaintiffs’ in fraud diligence through of due the exercise original attorney sufficient to toll was discovered, underlying injury should have mal- statute of limitations on their medical malpractice. in origins and its medical We practice once had retained finding claims remand this case a factual as independent attorney. v. IHC family’s Jensen claims of fraudulent whether (1997). Inc., Hosps., P.2d We -willtoll of limitations concealment the statute Hipwell’s at- as death and survival further held that Jensen and to their tempt hold that the deceased’s children mal- claims. We to recharacterize medical bring not entitled to death practice were claim a claim for wrongful death as guardian their mother had because fraud was to avoid the two- not sufficient and thus appointed at the time of her death year limita- statute of provi- not to the the children were entitled petition Id. In its rehear- tions. at 337. Finally, we tolling hold sions of the statute. McKay-Dee summary ing, now claims that family’s for common law claims up- judgment in its favor should have been governed also fraud are (i) does not held because fraud of limitations to Jensen toll 78-14-4 and decline reach found against McKay-Dee; Hipwell’s unconstitutionality of this their claims of (ii) Hipwell’s allegations Jensen reading of the statute. McKay-Dee prop- fraud on were erly by the trial court. dismissed HOWE, RUSSON, EVES, and begin a brief review of the We HALLIDAY, JJ., concur Chief Justice rehearing. Be- relevant to our decision opinion. ZIMMERMAN’S grant reviewing a cause we are themselves, Having disqualified Associate light most judgment, the facts we view Chief Justice STEWART Justice nonmoving parties, Jensen favorable to the herein; participate do not District DURHAM Hip- Hipwell. Id. at PHILLIP and District Judge J. EVES allege had staff well who sat. Judge K. HALLIDAY BRUCE not em- privileges at but was Rehearing Petition for On malprac- by McKay-Dee, committed ployed (Jensen’s daughter Shelly Hipwell tice grants rehearing and issues court now This wife) at patient she argument. while hearing oral opinion without Amicone, (Utah 1988); may argument party dump burden v. State 1984). (Utah Butler, (quoting 909 P.2d research.’" Carver, (additional omitted). recently 230-31) we noted in Monson In this As citations address of unconstitution- Monson, refuse to a claim particularly loath to as in we are making ality party the claim has failed where the unconstitutionality address claim of support requisite showing to to make the “critically depend on where the would outcome “ 1996). '[A] claim. of these into the effectiveness factual research” reviewing to have issues court is entitled furthering differing of limitations in statutes pertinent authority cited and clearly defined with goals. legislature's purported appealing simply depository which the *11 338 that, ty party third

McKay-Dee. They relationship between the com- to cover defendant, mitting and the our malpractice, McKay-Dee he and the fraud alleged liability fraudulently agent’s cases for the transferred to indicate doctor University Hospital. Hipwell negligent imputed or intentional tort can be Jensen and Healy agent in allege principal Dr. to the if the acts whole or further then colluded purposes brother, attorney part carry in out the of the Tim to with his and Co., principal. Hodges attorney Roger Sharp prevent to v. Gibson Prods. Jensen See (Utah 1991); learning Hipwell from Dr. 156 Birkner v. County, Lake 111 P.2d Healy allegedly and Salt had committed. Jensen 1989).1 us, allegation McKay-Dee the record before cannot Hipwell made no On we Healy’s Healy’s Dr. in col- about Dr. collusion with his determine whether fraud knew attorney Sharp. luding attorney Sharp brother Healy imputed McKay-Dee should be to ab- prior opinion, In our held Jensen (i) findings: Healy sent two that Dr. factual Hipwell’s allegations Dr. fraud (ii) agent; McKay-Dee’s was that Dr. Healy to toll were sufficient the statute of Healy part in or in to acted whole further long on their claims as limitations as McKay-Dee. complaint aims The makes attorney Sharp. How- retained at 336. allegations regarding these issues. We ever, to the we remanded trial court on proceed- remand the trial court for further to Healy’s Dr. alleged issue of fraud whether ings. was sufficient to toll statute of limitations Healy If the that Dr. trial court finds Hipwell indepen- after Jensen and retained McKay-Dee’s agent he and that acted at but before that had dent counsel counsel aims, part McKay-Dee’s in least to further it knowledge constituting of the facts Dr. actual liability Healy’s should Dr. impute fraud Healy’s alleged fraud. Id. at 336-337. McKay-Dee to and toll the statute of limita- (i) we now address are Dr. issues whether McKay-Dee tions as to to the same extent it Healy’s alleged fraud can also act to toll the If, Healy.2 is tolled as to Dr. on the other McKay-Dee; limitations as to hand, the trial court finds either Dr. (ii) Hipwell’s allegations whether Jensen McKay-Dee’s agent was not or that McKay-Dee of fraud on the are suffi- “entirely personal Dr. acted mo- the statute of to cient to toll limitations as interests,” [McKay-Dee’s] tives unrelated to McKay-Dee. These issues were not dis- Hodges, Healy’s P.2d at then Dr. opinion. in initial cussed our fraud toll the does not limitations McKay-Dee to HipwelPs and Jensen and issue, As to the first whether against McKay-Dee are barred. Healy’s collusion fraudulent with Jensen and Moving original can toll the stat to second issue raised on re- McKay-Dee, hearing, gen Hipwell argue ute limitations as to Jensen that the eral rule is that fraud a third to committed limitations as party concealing in a cause of should be of fraud allegedly tolled because McKay-Dee, through another defendant will toll the statute of committed one of its doctors, A. participating allegedly limitations as to defendant. See 51 (1970). Shelly Hipwell Jur. 2d Limitation Actions fraudulent transfer of Where, however, McKay-Dee University Hospital. an agency privi- there is apply Healy's cited also include factors of whether Dr. The cases two other acts determining agent’s whether an consider scope any agency relationship fall within the imputed principal to the conduct will be he have had with (i) employee's employment context: whether the general employee kind conduct is of the expected however, note, 2. We that this issue will be moot (ii) perform; and whether the em- determines, pursuant if the fact finder to our ployee's occurred conduct within the hours prior opinion, Hipwell's that Jensen and com- ordinary employee’s spatial work and bound- plaint timely was not filed because 156; Birkner, Hodges, aries. long fraud did not toll the statute McKay- 1056-57. As Dr. was not P.2d at Jensen, enough. employee, these criteria 944 P.2d at 337. Dee’s would not seem *12 claim, support particularly her when originally argue that his or Hipwell did not and party opportunity had an to conduct that has had fraud that would McKay-Dee committed Catrett, discovery. Corp. Celotex 477 U.S. limitations. Their com- toll the statute of 2548, 2552-53, 322-23, 106 S.Ct. 91 did, however, plaint include a count of con- (1986). party opposing a L.Ed.2d 265 against McKay-Dee. The structive fraud summary properly supported for motion medical mal- court held first that the trial judgment “may upon not rest mere alle- 78-14- practice statute of pleading, gations her] of [or denials his Code, Hipwell’s Jensen and of the barred response, by [or but his affidavits or as her] McKay- fraud claim of constructive rule, in provided otherwise this must set alternative, In the trial court ruled Dee. showing that there is a specific by forth “unsupported claim that genuine R. P. trial.” Utah issue Civ. for that was “insufficient evi- facts” and there 56(e) added). way, (emphasis Put another jury matter a as the dence to submit this brought moving party has forth once original opinion, In we fact finder.” our tending prove a either lack of evidence upheld finding that the trial court’s Jensen genuine challenging of material fact or issue Hipwell’s and claim constructive fraud of the existence of one the elements of nothing more a claim for amounted to than action, nonmoving party of cause then malpractice, be which would barred “providing] bears the burden of some evi- of the medical limita- dence, otherwise, support of affidavit Jensen, address, We did not tions. at 337. [or her] the essential elements of his claim.” however, Hip- and the contention Jensen Thayne, P.2d at 124. allegations fraud on well’s of constructive Hipwell In this and Jensen part McKay-Dee be to toll of would sufficient any sup to provide failed such evidence to Hip- the statute Jensen port their claim constructive fraud. Con well’s (i) requires structive fraud two elements: a trial find court We relationship parties; confidential between summary judgment properly granted (ii) failure to material facts. a disclose Hip- McKay-Dee, ruling that Jensen Martsch, Blodgett v. P.2d 301-02 fraud claim was insuffi- well’s constructive (Utah 1978); Am. 2d Jur. Fraud ciency supported by the evidence and there- (1968). 4,15 §§ Deceit not to toll the statute fore could be used (i) complaint alleges McKay-Dee’s both limitations. employee, Baughman, Dr. had confidential Addressing the merits re- Shelly relationship with and her as quires analysis careful relative bur- (ii) treating physicians, one her proof production dens of involved Baughman Dr. failed to disclose that he had opposing summary making and a motion for treating committed medical above, judgment. reviewing As noted McKay-Dee’s summary Shelly. motion summary judgment, view a motion for all judgment Hip- challenge did not Jensen and -light to the non- facts in the most favorable Baughman that Dr. well’s assertion had moving party. at 328. On a motion for relationship her confidential summary judgment, moving party bears motion, family. McKay-Dee’s however, did motion, proof namely, its the burden dispute Hipwell’s allegation that Jensen and genu- proving that there is no the burden Baughman alleged faded his Dr. to disclose any ine issue as material fact and McKay-Dee malpractice. produced the de moving party entitled to states, Baughman, position of Dr. wherein he n matter However, opposing of law. mo- [Shelly] “I have at all that re judgment, plaintiff still tion for exemplary, ceived that’s that could be care proving all has the ultimate burden example management used as her of action. elements of his or cause Baughman in good operation.” further Utah, Inc., 874 Thayne v. held at the time he dicated that he that belief Beneficial (Utah 1994). Further, once chal- provided Shelly’s proper care. opposed Hipwell’s allegation a motion lenged, party ly challenged who such Jensen and discharge Baughman failed to proof sufficient had must come forward with them, duty to disclose material facts to namely, that he had committed mal- the fact Baughman’s depo-

practice, by producing Dr.

sition in which he states he did does not believe that he commit-

believe and malpractice.

ted however, Hipwell, as the non-

Jensen and

moving parties, utterly to meet their failed coming

burden of forward with evidence Baughman’s deposition testi-

contradict Dr.

mony. opposition McKay-Dee’s In their summary judgment, Jensen and

motion for allegations of

Hipwell simply reiterate the complaint provide support Baughman tell

their claim that Dr. failed to

them that had been “left to bleed accurately

internally for several hours before Baughman’s

diagnosing her illness.” de- directly

position testimony specifically and assertion, Hipwell’s

challenges any provide failed to evidence to Thus,

support their claim. the trial court

correctly ruled that there was insufficient jury.

evidence to submit the matter to a con-

Because Jensen and claim of against McKay-Dee in-

structive fraud evidence,

sufficiently supported by the such

claim cannot be to toll the statute of used on their medical court

We remand to the trial for further

proceedings opinion. consistent with this ENGLAND, Plaintiff

Lan C. Respondent, individual,

Eugene HORBACH, an Medi

code, Inc., corporation, and a Utah Does V, through

I Defendants and Petition

ers.

No. 950506.

Supreme of Utah. Court

May 1997. Aug.

Rehearing Denied