*1 '285 LUND, Appellant, Plaintiff and Ballet C. HALL, Appellee. and
Elton W. Defendant
No. 950248.
Supreme Court of Utah.
2,May 1997. Slaugh,
Jackson Howard and Leslie W. Provo, appellant.1 for Ivie, Peatross, Ray Phillips Jeffery C. Mortensen, Provo, David N. appellee. RUSSON, Justice: appeals Plaintiff Rallet from a C. denying trial court order her motion for re- 60(b) summary judgment lief from under rule of the Utah Rules Civil Procedure. relief, her motion the trial court held that Lund’s was filed after the statute of limitations had run further concluded provision section 78-12-35 of apply. did not We affirm. Code attorneys appeal appeal plaintiffs Plaintiff's did not enter an minatíon that first from the appearance in this case until after both the trial untimely. summary court's order of dismissal and this court’s deter- *2 ac- commencement limited BACKGROUND for of tion. 12, 1989, plaintiff January Rallet C. On added.) Lund asserted: (Emphasis Elton W. Hall were Lund and defendant It that defendant is Plaintiffs belief collision, in an allegedly involved automobile during the out the state of been of behind, whereby hit Hall a vehicle years filing to the of this action. prior four hit Lund’s vehicle from behind which turn filed, initially When this action was injuries. causing Lund and Hall physical pled of was not statute insur- same automobile are covered defense, affirmative and was raised company, Farm Com- State Insurance ance to Plaintiff therefore has dismiss. (“State Farm”). Subsequently, re- pany she investigate to or conduct reason Farm, two both ceived letters State discovery regarding periods of time 14,1992. letter described dated October One of dur- have been out state benefits, Injury to ing years prior filing her “Personal Protection” of four summary judgment Farm action. Before the other stated: ‘Tour State granted, plaintiff opportunity to needs the payment policy and allow the Utah law this conduct on issue. necessary ex- treatment and reasonable penses argued caused this accident.” limi- further that the statute of Lund properly pled and tations defense was not 18, 1994, com- January Lund filed a On argued also that she therefore waived. She injuries, plaint against alleging Hall negotiations entered into settlement all Hall a resident of Utah. that at times was Farm, insurer, Hall’s Hall’s State and thus complaint years than was filed more four asserting a limitations defense al- the accrual of the cause action after in bad faith. complaint leged in and after the statute 24, 1994, May prior requesting a On to negligence action of limitations for cause of summary judg- on his motion for had run.2 ment, Hall, 24,1994, May moved amend plead statute of limitations answer to 20, 1994, April Hall sum- moved for On 14, 1994, the trial court defense. On June judgment, arguing com- mary that Lund’s amend, granted motion to and Hall Hall’s plaint for failure to file dismissed accordingly. answer On June amended his four-year her claim within ruling a request submitted for a Hall 20, 1994, May statute of limitations. On judgment. Sep- summary his motion for On opposition filed a memorandum Lund 30, 1994, granted the trial court tember summary judgment, Hall’s motion for assert- summary judgment. motion for In its Hall’s ing genuine that a issue fact existed decision, the memorandum trial stated: given of limitations summary judg- The trial court finds al- that section 78-12-35 of the Utah Code granted plaintiff’s should be because ment for the of the statute limitation lows law. of action must fail as a matter of cause after where the defendant leaves alleges auto- complaint Plaintiffs that an cause of action arises. Section January mobile accident occurred on provides: of the Utah Code inju- physical she sustained as a of that Plaintiffs ries result accident. Where a cause action accrues 1994; January state, Complaint was filed on he is out of the when this therefore the statute of limitations in term be commenced within the precludes cause matter of action. chapter after his return as limited 11,1994, to the state. a cause a motion for On October filed If after 60(b) departs from, judgment pursuant he the time accrues relief rule Procedure. Lund his absence is not the time the Utah Rules Civil complaint previously for failure to serve defendant within 2. Lund had filed a on Janu- dismissed 22, 1993, years days filing complaint ary approximately as re- four and ten accident, quired by days but law. argued on-going that she was “involved in should have been allowed more time to con- negotiations” with Farm discovery.3 settlement State duct “immediately prior expiration responds correctly that the trial court Farm limitations” and granted summary judgment thereby did *3 provided her notice of the run- with in denying abuse its discretion Lund’s ning required the statute of limitations as to motion reconsider. He asserts that further law. Lund asserted estoppel properly issue was not raised requires 78-12-35 of the Code Utah below, been, if and even it had there is no periods limitations be tolled for evidence that Lund had entered into “third- during which defendant was absent or de- party” negotiations regard- with State Farm parted from it was her ing liability against Hall, claim only but two “belief that defendant has been out of the letters from regarding State Farm to Lund during years prior state Utah the four to “first-party” her own claim for benefits un- filing of this action.” further She stated: der her oirá policy. Hall also asserts that “Relating back to the time when the first already Snyder this court has held in 22, complaint 1993, January was filed on Clune, (Utah 2d P.2d 915 Plaintiff approximately filed her 1964), that the of section 78- ten days after the statute had 12-35 Utah Code does not run.” Accordingly, Lund asked court for a defendant leaves the state after a motor summary judgment relief from the to con- vehicle but accident is still amenable to ser- discovery duct to determine whether defen- process. Furthermore, vice of argues, during dant was fact out of state the four there was no he was out of years prior to the of the statute. state, nor stating did Lund file an affidavit On March trial court denied discovery additional required was needed as reconsider, concluding to 56(f) by rule of the Utah Rules of Civil apply. section 78-12-35 did not The trial Procedure.4 court stated in its memorandum decision: appears
As it defendant was STANDARD OF REVIEW state at the the cause of action in this accrued, matter the time of absence We review the trial court’s denial aof from the state would not be tolled summary judgment motion to reconsider un commencement of the action. 60(b) der rule of the Utah Rules of Civil subsequently appeal Lund filed her notice Procedure for abuse of discretion. Timm with this court. (Utah 1996). Dewsnup, 921 P.2d appeal, argues On Lund that her motion to motion, In reviewing such a no we accord granted reconsider should have been deference to the trial court’s conclusions (1) grounds that the reasonable inferences to law but review them for correctness. be sup- drawn from the State Farm letters
ported argument that defendant was es- ANALYSIS topped raising (2) defense; appealing trial the trial court’s denial of court’s denial of 60(b) her motion to summary judgment, rule motion was based on mistak- reconsider interpretation en argues section 78-12-35 of Lund first that Hall should es- asserts, Accordingly, asserting Code. she sum- topped a statute of limitations mary judgment inappropriate, and she gives defense because the evidence rise to a urges appear party Lund also to reconsider its Should it from the of a affidavits holding appeal opposing from the sum- the motion that he cannot for reasons mary judgment untimely. we find present by stated affidavit to facts essential argument Lund's without merit and decline to justify opposition, may the court refuse the previous reverse our order on this issue. or order a con- permit tinuance or affidavits to be obtained 56(f) depositions 4. Rule of the Utah to be or to be Rules Civil Procedure taken just. states: make such other order as is adjuster was such as begun set- the conduct of that she had inference
reasonable delay filing her action. insurer, induce negotiations with Hall’s tlement Drawing all infer- reasonable Farm. State omitted). (footnote letters regarding of Lund two favor ences case, to Lund In the instant both letters Farm, we cannot con- Lund from State 14,1992, are October Farm dated State Farm had entered that Lund and State clude signed by representa- claim are same negotiations respect with into settlement tive, Additionally, let- Frank Fullmer. both might third-party claim Lund have the same claim num- ters make reference to best, are two letters evidence of Hall. At ber. One letter states: regard- negotiations Farm’s you your to inform about This letter is *4 against ing first-party her claim for benefits (PIP) Injury Personal Protection Benefits as her own insurer. State Farm you of to advise the time limitations and your excess benefits. case of Rice v. Granite cites the The describe the nature letter went District, P.2d 159 23 Utah 2d School incurring coverage the limits for and time argument. support for In expenses. The other stated such letter Rice, allegedly off a fell the bleachers woman part: relevant viewing high game a school football and while n application is an for benefits Enclosed injuries. The noti- severe woman suffered your you making claims. After assist high accident and was fied the school the form, we will able we receive subsequently insur- contacted the school’s expenses you payment of medical consider 2d at 456 P.2d company. ance aas result of this accident. have incurred company accepted re- 159. The insurance injuries and sponsibility for her assured compensated her ex- policy she for Farm and Utah law would be Your State payment for the of reasonable ex- company reassured allow
penses. The insurance
penses
In
caused
this accident.
order
her of this in two additional instances.
necessity
verify
and
the reasonableness
plain-
P.2d 159.
fourth time
treatments,
charges
we
ask
and/or
insurer, she
told her
tiff contacted the
opinions
for second'
or have bills audited.
claim had been denied.
Id.
you
your coopera-,
for
Thank
advance
an attor-
plaintiff
159. The
then contacted
tion.
although
ney,
filed an action
who
reasonably
All
be inferred from
expired.
had
Id.
stated in
that can
of limitations
We
the
letters
Farm was in
these
State
Rice:
covering Lund’s
expenses
negotiations
question
whether
for
policy.
insurance
The first letter
own
give
a claim or
will
compromise
the
debt
specifically informed Lund about her Person-
pleading
estoppel against
rise to an
Benefits,
Injury
al
Protection
second
depends
of limitations
provided
an
to make a
letter
negotiations
the cir-
character of the
policy.
claim for
under her
There is
benefits
parties.
surrounding the
cumstances
third-party
against
no mention of a
claim
action,
facts,
asserted
instant
fact,
specifically
one letter
refers
Hall.
affidavit,
adjust-
plaintiff’s
indicate that the
Lund,” presumably
the insured as “Marion
for
insurance carrier admitted liabil-
er
a
husband. Had this been
letter
ity
compensation upon sever-
promised
insurer,
pre-
Farm as Hall’s
led
al occasions. Plaintiff was
to believe
sumably
have
would
so stated. Further-
only
unresolved issue was the
Rice,
more,
plaintiff
unlike
Lund was
damages,
ascertainment of her
which she
represented
attorney prior
by an
to the time
contingent solely on her
was informed was
she
the letters from State Farm.
received
If
facts
discharge
her doctor.
be Accordingly,
is no
that Lund
there
affidavit,
plaintiff’s
third-party negotiations
the tri-
had
into
substantiated
entered
Farm,
thus
con-
reasonably
of fact
conclude that with State
cannot
er
could
we.
estopped
raising
days
elude that
three
after an automobile
in
collision
volving
of limitations defense to Lund’s ac-
nonresident drivers that
occurred
limitations,
Utah. To
tion.
avoid
asserted
defendants
left
argues
Lund next
that the trial court erred
the state after the accident and cited section
her motion to reconsider sum-
78-12-35 of the Utah
for
provision
Code
its
mary
misconstruing
judgment by
plain
that where a defendant leaves the state after
language of section 78-12-35
arises,
the cause of action
“the
of his
Code.
78-12-35 states:
Section
part
absence is not
of the time
limited
action
Where
cause of
accrues
commencement
action.” 12
2d at
state,
when
is out of
he
In Van Tassell v. 742 P.2d action arose See, e.g., Byrne v. process within the state. (Utah.Ct.App.1987), the Utah Court of (Alaska 716, 1971); Selby potential disparity Ogle, 488 P.2d Appeals recognized the Karman, 522, 609, 611 110 Ariz. P.2d three and our decision v. between these cases Co., lengthy (1974); period 96 Idaho of time.... a Lipe Javelin Tire Such result v. (1975); 291, Bray general conflict with the intolerable 536 P.2d purposes of the statute of limitations and
Bayles, 228 Kan. procedure. (1980); Rampino, Tolling substituted service Kenneth J. see also goal provide speedy During Absence of those statutes is to Limitations Statute adjudication cannot, claims. Party That We absent as Fact Affected evidence, legislature clear Remained attribute to the Claiming Limitations Benefit goal an intent to in the Subject During or Non- subvert face of to Service Absence (1974). residence, readily 1163-64 available and more reasonable 55 A.L.R.3d interpretation adopted. we have jurisdic- reasoning majority of the Id. at 719. exemplified Supreme tions is Alaska Byrne Ogle. agree. In that Interpreting Court’s decision We section 78-12-35 case, interpreted tolling regardless the court its state’s as limitations a provision against claim that the statute did whether defendant remained amenable to subject the defendant could being service lead to claims many years under Alaska’s nonresi- filed substituted the cause recognized contrary dent motorist statute. The court arose would be to the rationale alone, provision, might Furthermore, that the read behind statutes of limitations. indicating applying be read “as that where defen- in all cases departs dant inquiring state after cause would result in extensive accrues, every day the time he is to each absent that a defendant period personal not be considered out of the state business give limitation. order to stat- reasons. meaning,
ute its true must be examined case, allege the instant does conjunction bearing other statutes Hall was not a resident of time being problem considered.” 488 P.2d at or that he was some went on to The court state: process. reason not amenable service generally recognized pur- It is fact, complaint alleged that “[a]t pose of statutes is to encour- herein, pertinent all times Elton Defendant age promptness prosecution ac- (“Defendant”) W. was a resident *7 injustice avoid tions and thus which City Enterprise, Washington County, prosecution result from the of stale allega- of Utah.” Hall admitted this attempt claims. to Statutes tion. protect against the difficulties caused Although reasoning the trial court erred in evidence, disap- lost faded and memories apply section not that 78-12-35 did because pearing witnesses. In the attainment of defendant was in the state when the cause of ends, provided by those substantial aid is arose, we affirm the trial court’s denial statutes substituted service. establishing' of Lund’s motion reconsider on the basis means, By personal equivalent this times to service that was at all amenable service is made obtainable on absent de- Utah, as a and thus the resident fendants. tolling provision apply.5 not White v. did See (footnote omitted). Id. at 718 The court 1994) (Utah Deseelhorst, 879 P.2d 1376 apply declined to (“[W]e may judgment any affirm “defendant all times amenable to [was] upon not relied the trial ground, even one service.” Id. The court continued: court.”). Accordingly, because filed delay complaint years If can than four plaintiff his action for a her more alleged period beyond years, of action in her short two he could accrual the cause twenty years any complaint, to submit also wait or other she failed 56(f) rule 5. Because we that section of the additional evidence means of a hold apply not lack of as to Hall's Utah Code does to toll statute of affidavit and the action, preclude application not absence from state limitations in this we need address arguments request tolling provision in Hall’s that event. Lund’s failure in in run on an automobile accident of limitations had before following departs action, resident who the state an and court was correct the trial correctly reasoned in accident. This concluding. so person departs that if a the state case that agent here whom but leaves an CONCLUSION served, person, purposes can foregoing, we conclude the basis On lawsuit, really commencing not de- not abuse its discre- that the trial court did parted the nonresident the state. reconsider tion apply act does in cases that motor vehicle not summary judgment. affirm. We therefore do not involve an automobile accident. cases, agent, no appointed such there is C.J., TAYLOR, J., ZIMMERMAN, Any in. considerations enter different concur. regarding this court those situa- HOWE, Justice, concurring: tions await a case where the issue is squarely presented parties and the have affirming I concur briefed it. do grounds trial court on the the facts support estoppel, our deci-
not While it is true a number states Clune, Snyder v. 15 Utah 2d sion their do have held that statutes not rely upon cannot P.2d 915 departed if a defendant who has tolling provision of Ann. Utah Code pro- state amenable the service of is still § 78-12-35. cess, in other states have held other- courts taking leading wise. of the cases One join majority I do 630,153 Appleberry, view is Dew v. 23 Cal.3d opinion that discusses the of sec- (1979). Cal.Rptr. 591 P.2d tion 78-12-35 cases where nonresident case,' Supreme the California Court noted impli- vehicle act not involved and motor tolling statute of that edly previous, overrules three decisions given in 1872 and been effect in enacted court, Snyder, Co. v. Keithr-O’Brien court and of numerous decisions (1917); 227, 169 v. Du P. 954 Buell The appeals. court of court observed that Co., 231 P. chesne Mercantile unchanged from the date of (1924); Hunting, Gass enactment, legislature being its and the (Utah 1977). Discussion of those cases “clearly aware of the statute’s broad ramifi- unnecessary entirely here because none of rule cations has modified reach of the them involved the nonresident motor vehicle appropriate circumstances” such Califor- act, 41-12a-505, that was before us nia’s motor act. vehicle Snyder v. Clune and is before us court stated: parties case. have briefed instant Legisla- provisions These evidence the given what effect should be *8 availability recognition ture’s in a than an automo- context other personal jurisdiction may remove ne- mo- bile accident case where nonresident cessity suspending limita- applicable. tor vehicle act Discussion of Legislature tions. If the intends subject a should await decision tolling provision not extend the limitations posed question time as that to us in a such period whenever the is amenable case, defendant has later when the issue been briefed jurisdiction, easily it can so state. parties. 222, Cal.Rptr. Id. P.2d at 512. Snyder good v. Our decision in Clune is then observed Illinois law because enactment the nonresi- recently Legislature tolling amended its pro motor act in 1943 dent vehicle effected any it statute so would repeal tanto of section person pro- who was to service of amenable ap- This 78-12-35. is so because the act cess in Id. that state. Corporations points the Division of and Com- Seeley agent Supreme for the mercial Code an service of Court of Ohio v. Inc., process upon Expert, who 26 Ohio 269 N.E.2d is involved St.2d (1971), Supreme and the Court Texas (Tex. Deitz, Vaughn BLACK, S.W.2d Appellant, L. John Plaintiff and 1968), have likewise refused to hold the toll ing inoperative statutes of those states when departed defendant is amenable to the CLEGG, Baldwin, H. James John C. Ste process in that service state. These phen Trost, Nayer Honarvar, A. H. recognized legislature’s courts that it was the Moxley, Appel Paul T. Defendants and
prerogative to establish statutes of limita lees. provide tions and to instances which their should be tolled. These courts No. 950334. further observed that while there arguments tolling valid statutes are un Supreme Court of Utah.
necessary when a defendant is amenable to 9,May process, arguments the service of those must legislature, be addressed to the not to the
courts. statute, 78-12-35, tolling
Our does materially original
not differ from its enact- TV, chapter
ment in Laws of Utah date, early
section 23. Even at that February
the Civil Practice Act of
service of could be made by leaving copy
absent defendant abode, place
summons “at his usual of, least, age
some suitable (title years.”
fourteen 1876 Utah Laws 407 20).
XX, Ill, Thus, § ch. tolling when the appears
statute was enacted in it legislature was aware that a defendant
who was absent from the state could be place
served with if his usual
abode was still in the state. conclusion, expansion with the of means jurisdiction
by which can be obtained over a who has left the there be the same need for our previously appears existed.
to me that this court should not make rendering inoper- our
ative cases that do not involve an auto squarely
accident until the issue been
presented to this court and briefed. That happened
has not this case.
DURHAM, J., concurs.
Having himself, STEWART, disqualified C.J., herein; participate
Associate does not TAYLOR, Judge,
STANTON M. District sat.