362 P.3d 919
Utah Ct. App.
2014

WESTMONT MIRADOR, LLC and Terry Foote, Plaintiffs and Appellants, v. Joshua MILLER and Brad Nelson, Defendants and Appellees.

No. 20130985-CA

Court of Appeals of Utah.

Sept. 5, 2014

Rehearing Denied Nov. 5, 2014

2014 UT App 209 | 919-921

insured location under the policy, premises are used in connection with a residence only when their use is “integral to [the residence‘s] use as a residence.” See id. Nothing in the record before us suggests that Simmons‘s use of the common area where Olsen was injured could be characterized as integral to Simmons‘s use of her residence7 I would therefore conclude, as a matter of law, that the common area was not an insured location under the policy.

¶ 35 I also agree with American National‘s argument that, regardless of whether the common area is an insured location, the policy excludes coverage for Olsen‘s injuries. The policy provides that coverage is excluded for bodily injuries “arising out of the ownership, maintenance, use, loading, or unloading of motor vehicles or all other motorized land conveyances, including any trailers, owned or operated by or rented or loaned to any insured.” (Emphasis added.) It is undisputed in this case that Olsen‘s injuries arose from the use of an ATV and that the ATV was owned by Simmons, an insured. Thus, coverage is excluded if the ATV is either a motor vehicle or a motorized land conveyance.

¶ 36 I would conclude that the ATV meets the policy‘s definition of a motor vehicle because, at the time of the accident, it was a “motorized land vehicle owned by any insured and designed for recreational use off public roads, while off an insured location.” However, even if the ATV does not meet this definition because it was on an insured location at the time of the accident, it clearly falls within the category of “all other motorized land conveyances.”8 Thus, the policy clearly excludes coverage for Olsen‘s injuries regardless of whether the common area is an insured location.

¶ 37 For these reasons, I respectfully dissent from the majority opinion.

Charles A. Schultz, for Appellants.

Joshua Miller and Brad Nelson, Appellees Pro se.

Judge GREGORY K. ORME authored this Memorandum Decision, in which Judges JAMES Z. DAVIS and JOHN A. PEARCE concurred.

Memorandum Decision

ORME, Judge:

¶ 1 Westmont Mirador, LLC and Terry Foote (collectively, Westmont) challenge the district court‘s award of only nominal damages to Westmont after the court determined, in the context of entering default judgment against defendants Joshua Miller and Brad Nelson, that certain online comments made by Miller and Nelson about Westmont constituted defamation per se.1 We affirm.

¶ 2 In order to constitute defamation per se, the words used must fit within one of a handful of well-established categories. See Baum v. Gillman, 667 P.2d 41, 43 (Utah 1983). At issue in this case are words that “charge conduct that is incompatible with the exercise of a lawful business.” Id. Ordinarily, to establish a claim for defamation, a plaintiff must demonstrate, inter alia, that “the statements resulted in damages.” DeBry v. Godbe, 1999 UT 111, ¶ 18, 992 P.2d 979. However, when defamatory words are actionable per se “the law presumes conclusively that damage has followed, and the plaintiff need neither allege nor prove it.” Nichols v. Daily Reporter Co., 30 Utah 74, 83 P. 573, 574 (1905) (citation and internal quotation marks omitted).

¶ 3 The district court concluded that Miller‘s and Nelson‘s online comments about Westmont, as alleged in Westmont‘s complaint, constituted defamation per se and awarded Westmont one dollar as nominal damages. It declined to award compensatory or punitive damages. Westmont argues that because damages are presumed in cases of defamation per se, the district court was required to award Westmont damages sufficient to discourage future defamation. “Whether the district court applied the correct rule for measuring damages is a question of law,” and we review its decision for correctness. Mahana v. Onyx Acceptance Corp., 2004 UT 59, ¶ 25, 96 P.3d 893.

¶ 4 Westmont has failed to support its argument “with citations to the authorities, statutes, and parts of the record relied on.” See Utah R.App. P. 24(a)(9). “Implicitly, rule 24(a)(9) requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998). Westmont‘s brief “identifies no rule of law that the district court allegedly violated” in awarding only nominal damages and does not go beyond “bald citation” to cases generally discussing the doctrine of defamation per se. See Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶¶ 37-38. “An inadequately briefed claim is by definition insufficient to discharge an appellant‘s burden to demonstrate trial court error,” id. ¶ 37, and we therefore conclude that Westmont “has failed to carry its burden of persuasion on appeal,” see id. ¶¶ 37, 40.

¶ 5 Additionally, Westmont‘s primary argument flies wide of the mark. In a case of defamation per se, presumed damage does not mean that the court or a jury must award substantial monetary damages. Rather, it is a procedural mechanism that relieves a plaintiff of its burden of proving damages as an element of its prima facie case. See Nichols, 83 P. at 574 (noting that in cases of defamation per se, “the plaintiff need neither allege nor prove” harm) (citation and internal quotation marks omitted). Thus, even when the district court presumes harm in cases involving defamation per se, the court is not required to presume any particular amount of damages beyond nominal damages. See Restatement (Second) of Torts § 620 (1977) (“One who is liable for a slander actionable per se . . . is liable for at least nominal damages.“). For example, nominal damages are appropriate “when the insignificant character of the defamatory matter, or the plaintiff‘s bad character, leads the [factfinder] to believe that no substantial harm has been done to his reputation, and there is no proof that serious harm has resulted from the defendant‘s attack upon the plaintiff‘s character and reputation.” Id. § 620 cmt. a.

¶ 6 Affirmed.

Notes

1
As noted by the district court, “the only reason there may be defamation is not because of the evidence but because of the default.” Specifically, the allegations of the complaint stood unrefuted because Defendants did not answer the complaint in timely fashion. In pertinent part, the complaint alleged that Miller and Nelson referred to Westmont as “crooks” and “scam artists.”
7
In Wynn, the court expressly noted that the injured party had presented no evidence that the insured had easement rights to the beach under his deed. Massachusetts Prop. Ins. Underwriting Ass‘n v. Wynn, 60 Mass.App.Ct. 824, 806 N.E.2d 447, 451 n. 6 (2004). Here, it is undisputed that Simmons did possess an easement to use the common areas, including the area where Olsen was injured. However, the policy defines insured premises in terms of how the premises are used, not whether the use is under a legal right. For this reason, I would not distinguish this case from Wynn on the basis of Simmons‘s easement.
8
The policy does not provide a definition for the term “motorized land conveyance.” However, looking at its plain language, the term clearly encompasses the ATV in this case: the ATV has a motor, it conveys persons, and it is used on land.
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