Case Summaries

• Publication year: 1993
• Pages: 39
• Citation: Vol. 6 No. 5 Pg. 39

Case Summaries Vol. 6 No. 5 Pg. 39 Utah Bar Journal May, 1993

The following case summaries were prepared by Judge Pamela T. Greenwood of the Utah Court of Appeals and Associate Chief Justice Richard C. Howe of the Utah Supreme Court and represents selected significant decisions by each court in 1992. These are the cases which Judge Greenwood and Justice Howe felt were important decisions from their respective courts in 1992. These case summaries are provided as a suggestion of the main holding in each case and are not a definitive statement of the case holdings, nor are they intended as a substitute for an actual reading of the case. The cases were discussed by the judges in the Salt Lake County Bar luncheon on January 13, 1993. The case summaries are reprinted here with the judge's permission for the benefit of all members of the Bar. Many of these cases have been summarized and reviewed in the Utah Bar Journal during the past year.

SELECTED CASES —1992 UTAH COURT OF APPEALS

Prepared by Judge Pamela T. Greenwood

Civil

Druffner v. Mrs. Fields, Inc., 828 P.2d 1075 (Utah App. 1992). Waivers of Fair Labor Standard Act rights in a release agreement which are neither administratively supervised nor judicially approved are not enforceable to bar a cause of action for unpaid overtime compensation.

Gridley Assoc, v. Transamerica, 828 P.2d 524 (Utah App. 1992). Defines the terms "sudden and accidental" as found in pollution exclusion clauses in insurance policies. The discharge of gasoline from an underground line which caused an immediate spill into the ground was "sudden" even though it remained undiscovered for some months. The costs for the gasoline spill cleanup were covered under the insurance policy.

DeBry v. Valley Mortgage Co., 835 P.2d 1000 (Utah App. 1992). A construction lender owed no duty to a third party purchaser for construction defects. Where there is no contractual or fiduciary relationship between the lender and the third party, courts will not extend a duty unless the lender involvement goes beyond a traditional lender role or the lender misrepresents material facts to third parties.

Turner v. General Adjustment Bureau, Inc., 832 P.2d 62 (Utah App. 1992). Emotional distress damages are not recoverable in a suit for fraud.

Hatton-Ward v. Salt Lake City Corp., 828 P.2d 1071 (Utah App. 1992). Plaintiffs may file directly in state court when pursuing damages pursuant to whistle-blower statute (Utah Code Ann. §76-21-1 (1989)). It is unnecessary to exhaust administrative remedies when not seeking reinstatement.

Prince v. Tooele County Housing Authority, 834 P.2d 602 (Utah App. 1992). Section 1988 attorney fees are awardable to the prevailing party in a statutory, non-civil rights claim. Fees were awarded even when prevailing party was represented at no cost by public interest attorney.

Town of Alta v. Ben Hame Corp., 190 Utah Adv. Rep. 29 (Utah App. 1992). The granting of an injunction prohibiting Ben Hame from conducting short-term rentals of its residence in an area zoned for single family dwellings was upheld. The majority opinion rejected Ben Hame's claim that the short-term rental activity was a valid nonconforming use under Alta's zoning ordinance because it was a valid accessory use to a single family dwelling under the county ordinance prior to the subdivision's annexation to Alta. The court also rejected

Ben Hame's contention that equitable estoppel prevents Alta from enforcing the zoning ordinance and that the zoning plan was illegal spot zoning. A dissenting opinion labeled the short-term rental use a valid nonconforming use and felt that Ben Hame had raised a genuine issue of material fact concerning the spot zoning issue.

Brown v. Richards, 194 Utah Adv. Rep. 34 (Utah App. 1992). Contains a discussion of what constitutes a prevailing party for purposes of an attorneys fee award under a contract; findings for a fee award must be as complete as other findings.

Berrett v. Denver Rio Grande, 830 P.2d 291 (Utah App. 1992) (cert, denied). Expert witnesses may not be excluded as a sanction where the trial court failed to set clear deadlines for witness disclosure.

Campbell v. State Farm, 193 Utah Adv. Rep. 19 (Utah App. 1992) (cert, denied). The trial court's grant of summary judgment in favor of the insurer was reversed. Held: An insurer's eventual payment of an excess judgment did not necessarily vitiate the insured's cause of action for breach of the duty to act in good faith. The subsequent payment for the excess judgment may mitigate the damages flowing from the insurer's alleged bad faith conduct, but it does not nullify the bad faith cause of action.

Lounsbury v. Capel, 191 Utah Adv. Rep. 40 (Utah App. 1992) (cert, denied). Informed consent statutes do not preclude a cause of action for battery in medical malpractice cases. The temporary incapacity of the patient does not justify obtaining consent from the patient's spouse if there was reasonable opportunity to obtain consent from the patient.

Family Law

Grover v. Grover, 198 Utah Adv. Rep. 24 (Utah App. 1992). A divorce decree providing that child support would be automatically adjusted by the parties to reflect changes in the father's income contravenes the requirement that there be a material change in circumstances.

Allred v. Allred, 835 P.2d 974 (Utah App. 1992). The court may order a custodial parent to...