Utah Law Developments

Publication year2015
CitationVol. 28 No. 2 Pg. 32
Utah Law Developments
Vol. 28 No. 2 Pg. 32
Utah Bar Journal
April, 2015

March, 2015

Appellate Highlights

Rodney R. Parker and Julianne P. Blanch, J.

EDITOR’S NOTE: The following appellate cases of interest were recently decided by the United States Tenth Circuit Court of Appeals, Utah Supreme Court, and Utah Court of Appeals.

iMatter Utah v. Njord, No. 13-4173, 2014 U.S. App. LEXIS 24164, (10th Cir. Dec. 22, 2014)

Utah Department of Transportation’s parade permitting requirements, which include insurance and indemnification requirements, were not unconstitutional as applied even though Utah does not exempt indigent applicants from the requirements. The court held, however, that the insurance and indemnification requirements were not narrowly tailored to serve Utah’s significant public interests of promoting public safety. There was no evidence that the requirements addressed public safety or had any effect on the direct expenses Utah incurs in hosting a parade, and the requirements were not narrowly tailored to serve the state’s interest in protecting itself from liability.

Dish Network Corp. v. Arrowood Indemnity, Co. 772 F.3d 856 (10th Cir. Nov. 25, 2014)

Applying the mandate rule to an effort by insurers to file post-appeal motions for summary judgment raising additional policy-based challenges to the insured’s claim that the insurers had a duty to defend, the court held that the remand language, which “directed the district court ‘to address…in the first instance’ the additional arguments that were asserted by the Insurers in their original summary judgment motions but not resolved by the district court in granting those motions,” id. at 866 (emphasis added) (omission in original), did not limit the district court from considering other arguments the insurers might have regarding the duty to defend.

In re Millennium Multiple Employer Welfare Benefit Plan, 772 F.3d 634 (10th Cir. Nov. 13, 2014)

Participants and employers in multiple states sued the Millennium Multiple Employer Welfare Benefit Plan (the Plan) and multiple insurance companies that held their life insurance policies. The plaintiffs alleged tort claims and sought a declaratory judgment over ownership of their policies. The Plan declared Chapter 11 bankruptcy, and one insurance company sought to interplead the cash value of the policies it held into the court and enjoin the plaintiffs from prosecuting any state tort claims against it. The bankruptcy court granted the interpleader petition in part, but denied injunctive relief relating to the state tort claims. The Tenth Circuit affirmed, holding that interpleader relief does not permit the insurance company to shield itself from its tort liability or to limit its total liability in tort to the value of the policies.

Woods v. Standard Ins. Co., 771 F.3d 1257 (10th Cir. Nov. 10, 2014)

State employees, representing a class of New Mexico state and local government employees, commenced action in state court alleging that they paid for insurance coverage through payroll deductions and premiums pursuant to a policy issued by their insurer but did not receive the coverage for which they paid. Defendants removed to federal court under the Class Action Fairness Act (CAFA). The district court remanded to state court, finding that the local controversy exception to CAFA required it to decline jurisdiction. The Tenth Circuit reversed. Although plaintiffs could not satisfy the “local defendant” requirement of CAFA’s local controversy exception, 28 U.S.C. § 1332(d)(4)(A), simply by naming the insurance company’s local agent as a defendant, the local agent’s conduct did not form a significant basis for the plaintiff’s claims, and the plaintiffs did not seek significant relief from her.

Tennille v. Western Union Co. Nos. 13-1378, 13-1456, 2014 U.S. App. LEXIS 24168 (10th Cir. Dec. 22, 2014)

A Rule 7 appeal bond cannot cover costs of notifying class members of an appeal or administrative costs in maintaining a settlement pending appeal. Several class members had objected to a settlement of claims against Western Union relating to how it handled failed wire transfers. The district court overruled their objections, certified the class, approved the settlement, and entered final judgment. The district court’s order required the objectors to post a bond of over $1 million in order to pursue an appeal of their objections, covering three categories of costs: $647,674 to send class members notice of the appeal, $334,620 in administrative costs to maintain the settlement pending appeal, and $25 for “printing and copying.” The court decreased the amount of the bond to $5,000, which it deemed to be the reasonable cost of printing and copying.

B.R. v. Rodier, 2015 UT 1, 2015 Utah LEXIS 1 (Jan. 9, 2015)

The children of a man who shot and killed his wife – their mother – while under the influence of medications prescribed to him, filed suit against the nurse practitioner who had prescribed the medication as well as the consulting physician. In B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228, the Utah Supreme Court reversed the dismissal of the childrens’ tort claims against the nurse practitioner, holding she had a duty of reasonableness that extended to third parties who might be injured as a foreseeable result of her negligence. In this case, the court affirmed the dismissal of the childrens’ claims against the consulting physician, holding that the provision of the Nurse Practice Act allowing a nurse practitioner to prescribe schedule II–III controlled substances “in accordance with a consultation and...

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