*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
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,
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.”
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
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