*1 postponing the chemical test under direction of at the test administered merely impression that he is agree I with mistaken peace officer. arresting opinion asserting legal right that “this which he thinks he majority a in the statement arresting Miranda, duty on the it is incum- no have under language places explain an arrested affirmatively arresting inform on the officer to bent officer breathalyzer test refused a motorist that the unequivocally driver who has to the subsequent test warning a blood rights explained that he can have in a Miranda physician.” performed by his own and to consult an attor- to remain silent a ney apply do not to the decision to take however, statement, ad- does not That chemical test. The question presented here. dress the added). plaintiff (emphasis re- arresting Id. at 1333-34 We officer testified test judgment revoking appel- to submit to a blood twice offered versed replied, “I offer that to the officer can’t lant’s driver’s license and remanded could explained He that blood tests you.” findings case for further of fact. We held given only there had been be where process require that “fairness and due bodily injury a fa- and serious accident his person a threatened with the loss of tality plaintiff told the had resulted. op- driver’s license should be afforded an thought that he blood tests were officer portunity make a on a fair choice based Thus it is more accurate than breath tests. explanation rights of his and duties.” plaintiff brought up the clear that the sub- relying plaintiff While the here was not requested ject of a blood test and twice rights, on his Miranda he did make two plaintiff clearly had the one. Since the requests clear that he allowed a blood test, right to a the answer of the blood arresting responses test. The officer’s misleading half-truth. The officer was a adequate explanation were not an and fair plaintiff and in officer had the handcuffed Cox, rights. supra, of his v. un- Holman him custody and should have informed questionably requires a reversal of the test he offered to submit to a blood when judgment revoking his license. the breatha- that he could obtain one after Instead, lyzer given plaintiff test was him. DURHAM, J., dissenting concurs given categorical “no” was not a HOWE, opinion of J. to his complete fully a truthful answer request. plaintiff obviously had confidence misin- testing.

blood Had the officer not him, might

formed he well have been will-

ing prior breathalyzer test to submit to a a check on its

since he would have had COMPANY, AUERBACH Plaintiff Utah, Cox, reliability. In Holman v. Respondent, appellant’s P.2d 1331 driver’s v. license was revoked for his refusal to sub- mit He to a chemical test. contended POLICE, KEY SECURITY arrested, his because he had been had had Defendant, INC., rights read at the same time Miranda test, had been asked to take the chemical NATIONAL INSURANCE GUARANTY legal rights he was not clear as to his COMPANY, Appellant. Garnishee under the circumstances. stated: We No. 18688. to the officer When the driver manifests duty that he not understand his does Supreme Court of Utah. light implied under the consent law has warning, the officer Miranda responsibility clarify the driver’s

rights responsibilities. If a driver’s

response refusing or indicates that he is *2 Russon,

Leonard H. Scott W. Christen- sen, City, for Guaranty Salt Lake Nat. Ins. Hansen,

William J. City, Salt Lake Auerbach.

DURHAM, Justice.

By appeal Guaranty this National Insur- Company National”), (“Guaranty ap- pellant garnishee, and seeks reversal of judgment against Key it as insurer Se- Police, curity (“Key Security”), Inc. judg- debtor, in Compa- favor of Auerbach (“Auerbach”), ny respondent garnish- (1) or. contends: Key Security between coverage property National excludes care, custody and control in- sured; (2) the statute of is a limitations complete recovery by Key to bar either Auerbach; (3) Security or Auerbach has no action; standing bring (4) trial court committed reversible ruling error in prejudice. the issue of only appellant’s We address second points, third dispositive. We hold that liability, National’s subject was not gar- subject Auerbach and could not be policy. nishment under terms of the We also hold statute of limitations bar an action on We policy. therefore reverse. garnishee’s wrongful facts are as follows: Auer- denial of pertinent Security had an Key garnishee right waived its to claim or

bach Security transport Key would whereby estopped claiming from Se- receipts daily to its bank for Auerbach’s curity failed to meet the conditions of the evening January deposit. On receipts, transporting Auerbach while questions presented by appeal this *3 Key Security was at employee of robbed an (1) Guaranty liability are: whether the of robbery, Key time of the gunpoint.1 At the National, any, if alleged by as Auerbach in policy Security had an insurance with Guar- answers, reply garnishee's its to morning January anty National. On the of by garnishment; (2) reached whether 1974, 4, Key Security president orally the recovery the statute of limitations on bars agent robbery. an insurance of the notified policy. the

At that time the extent of the loss was Guaranty Neither National nor unknown. Guaranty argues that Key Security any took further action. standing” bring this Auerbach “lacks to 256, against Key Kirkendall, filed an action action. Paul v. 6 Utah 2d Auerbach 13, 1976, Security February approxi- on 311 P.2d 376 is relied on for the $9,700, mately by the amount unrecovered proposition garnishment that the statute police Surrage, president John authorities. contemplate litigation does not of a chose Key Security, was of the then-defunct judgment in action between the creditor 19, February served on 1976. Auerbach garnishee. There, judgment and the the judgment against Key a default obtained part creditor claimed bad faith on the of 9, May 9, Security September 1977. On on company failing the insurance to settle 1979, in filed a motion and order Auerbach policy garnished the claim within limits and supplemental proceedings and at the sched- policy. analyzed the This Court Utah proceedings uled on November relating garnishment 64D R.Civ.P. to Security poli- informed that had a was garnishment proceeding concluded that a is Guaranty cy of insurance with National at proper liability not the method to determine caused robbery.2 the time of the Auerbach (insured) garnishee upon of to defendant a writ of to be served plaintiff (garnishor). by the tort asserted Guaranty seventeen months National some 260, Id. at 311 P.2d at 378. This Court 8,1981, garnishing policy later on the opinion further stated: “We are of the that equal judgment. in an amount to its default (as of the time the served) in the claim of defendant set out Guaranty National’s “Answers to Inter- reply presently the second is not a debt due rogatories part of to Garnishee” not garnishee_ from record, unliq- Rather it is an apparently they any the denied 261, uidated tort claim.” Id. at 311 P.2d at Key Security. In indebtedness to its “Re- case, Garnishee,” 379. the instant claim of Auerbach's ply Answers Auerbach against following: (1) wrongful National for gar- asserted the tort, coverage denial of in wrongfully coverage nishee denied to de- sounds and the obligated pay plaintiff reasoning Auerbach, of applicable. fendant and is Paul is judgment against Key garnishor, full of its as proper party amount is not the (2) Security; by pursue Key claim, of the Security’s reason tort Appellant respondent 1. Eugene in their briefs and 2. The motion and order directed D. Ad- findings appear the trial in its supple- court of fact state the ams or Jene Ambrose to at the 3, robbery January proceedings date of the but the mental as defendant. Mr. Adams undisputed testimony policemen, president Key Security of two had been of until he sold employee, Key Security Surrage Auerbach officers and the business to John as of December agent January an insurance set the date at 1973. He was never named as defendant trial, fact, proceedings 1974. At the of commencement suit. At the he disclosed the exist- parties counsel for both indicated to the court ence appear- The reason for his pleadings incorrectly unexplained stated in the record. Against National, garnish- 13. Action Company Coverag- and a against — A, D: proper context es B and No action shall proceeding is not the lie ment unless, such liabili- against company whether as a in which to determine condi- thereto, ty precedent exists. tion the insured shall fully complied have with all terms of “appropriated” that it denies Auerbach policy, this nor until the amount of the wrongful de- tort claim for Key Security’s obligation pay insured's shall have spite pleadings, its of of nial finally by either judg- been determined instigated garnishment that it but contends against the insured after actual judg- liquidated proceedings “to collect by written of trial $9,741.73 against Key Security ment of insured, company. the claimant and the proceeds from insurance [Emphasis added.] National.” Auerbach issued “not to obtain argues trying further it is Accordingly, provision, under this default rights Key Security against Guaran- *4 judgment does not entitle even the insured National, ty seeking rather is to obtain recover under the We hold that Key money Guaranty owes National which foregoing can provision under the there the insur- pursuant to terms of an Security, by Key Security and therefore no action no provides payment policy which for any liability potential of of judgment the a is rendered event valid Guaranty National. against its insured.” alternative, the if we view Auer- rights contractual in on its bach’s derivative as mistakenly Auerbach relies Key liqui nature, it judgment against Security as a claims in one context and another, of on between dated claim instead the claim stands in denies Auerbach the Key Guaranty It is Security and National. Key Security, Lang Lang, of v. 17 shoes undisputed proof that no of loss was ever (1965), 657 2d 403 P.2d Utah submitted, any investigation nor by its claim is barred the statute of Guaranty made Na adjustment claim policy provision under limitations the above respect robbery. to the Auer- tional with § U.C.A., 1953, 78-12-23, which pro attempts to avoid the characterization bach six-year period of limitations vides for a on against Guaranty of its claim National in writing. instruments garnishor, either tort or contract. As a complied with The insured never the may only frame Auerbach act within the policy requiring written terms of the notice action; Security’s work of cause of 9) company (paragraph giving against rights any, Guaranty if 10),4 (paragraph a claim or notice of suit in nature.3 Auerbach derivative a of the nor was there final determination Security’s pursue Key wrong not claim by by agreement actual obligation trial or garnish through ful denial of a parties. Guar- action, we hold that 8, 1981, represents on anty National liability, subject National’s is not any poli- suit on the first institution of garnishment. years That occurred more than seven cy. Myers robbery. cites v. after the Auerbach Furthermore, erroneously Auerbach Utah, McDonald, P.2d 84 for 635 provides payment policy claims that the of limita- proposition that the statute judgment “in a valid is entered the event injured party not run until the tions does against Paragraph insured.” 13 of forming facts the basis for a policy as follows: discovers reads Chugg, Utah 2d privity Bureau Ins. Co. 6 315 lacks with Since Auerbach (1957). National, 277 right. P.2d See it cannot sue its own Exchange, 19 Ammerman v. Farmers Insurance notify Surrage he did not 4. Attrial Mr. stated (1967); Utah P.2d 576 Utah Farm 2d by Auerbach. National of the action Myers, The decision in of action.5 cause case, inapposite

wrongful death to the we at for reasons need not deli-

case bar any does not offer here. Auerbach

neate holding

acceptable rationale (losses incurred in the of action rob-

cause any other date than

bery) arose that of robbery itself. reversed, judgment below is and the is remanded with directions to enter

case garnishee. for the

judgment

HALL, C.J., OAKS, J., concur.

STEWART, J., concurs in the result.

HOWE, result). (concurring in Justice ground

I in the result on the concur

any action on the was barred §

U.C.A., 1953, 78-12-23(2).

George Handy, Ogden, B. for defendant appellant. Neeley, Ogden, plaintiff Robert L. respondent. PER CURIAM. HANSEN, Arlene Plaintiff and Respondent, parties here married in had 3 children, and were divorced in 1972. In the decree, plaintiff was awarded the use and HANSEN, Melvin Defendant occupancy purchased of a home in 1961. Appellant. parties The court left title thereto to the No. 18867. joint tenancy, disposed they “to be of as see fit.” Plaintiff was to make the house Supreme of Utah. Court payments and pay defendant was to off the family obligations. divorce, after couple

Soon re- living together, they sporadi- sumed did cally ensuing years. for the next Dur- ing separations, each of the one or the children, other was home with the furnish- ing adequate support. care and Each of employed, plaintiff earning them was about half that earned defendant. they living at a time when were together, parties signed 28, 1979, May proceed- 5. Auerbach contends this was on November date of supplemental date of proceedings. ings, its motion and order for discrepancy but that is not material to this appears It from the record that decision. Auerbach discovered the existence of the