Heslop v. Bear River Mutual Insurance Co. , 831 Utah Adv. Rep. 14 ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 5
IN THE
SUPREME COURT OF THE STATE OF UTAH
NATALIE HESLOP and BRANDON HESLOP,
Appellants,
v.
BEAR RIVER MUTUAL INSURANCE COMPANY,
Appellee.
No. 20150697
Filed January 24, 2017
On Direct Appeal
Third District, Salt Lake
The Honorable William W. Barrett
No. 150900930
Attorneys:
Ronald E. Dalby, John P. Lowrance, Timothy E. Pettitt, South Jordan,
for appellants
Kristin A. Van Orman, Jeremy G. Knight, Salt Lake City, for appellee
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE HIMONAS joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Natalie Heslop (Heslop) rolled her truck down an
embankment. She told the responding police officer, her family, and
medical personnel that the accident had been a suicide attempt. Ten
days after the crash, she told an insurance adjuster that her “mind
wasn’t right,” she had taken “too many pills” the day before the
crash, and that the crash was “pretty much a suicide attempt.” Her
insurance policy provided that it would exclude coverage “to any
injured person, if the person’s conduct contributed to his injury . . .
by intentionally causing injury to himself.” The district court granted
HESLOP v. BEAR RIVER
Opinion of the Court
summary judgment to Bear River Mutual Insurance Company (Bear
River) as to both Natalie Heslop’s personal injury claim and her
husband Brandon Heslop’s property damage claim. It also denied
the Heslops’ request for a continuance to permit additional
discovery. We affirm.
BACKGROUND
¶2 On Sunday, October 5, 2014, Heslop overdosed on
prescription Ambien and Lexapro. The next day, she decided to
drive through Ogden Canyon to “look at the leaves.” While in the
canyon, Heslop, unseatbelted, rolled her truck down an
embankment. She suffered a hairline fracture to her C7 vertebrae.
She received a skin graft and stitches over her right eye. She was also
admitted to a hospital behavioral unit for several days.
¶3 On October 16, a Bear River insurance adjuster called Heslop
to question her about the accident. Heslop told the adjuster that her
crash in the canyon “was pretty much a suicide attempt.” The
adjuster asked, “you mean driving off the cliff was a, a suicide
attempt?” She responded, “Yeah.” The adjuster asked Heslop,
“Okay, and then what, you just saw an edge there and decided, you
know, this is it?” Again she responded, “Yeah.” When the agent
asked Heslop if she had admitted to anybody else that her crash was
a suicide attempt, she told him, “my whole family knows . . . , I told
the police and all the doctors knew.”
¶4 When the adjuster asked Heslop why she had attempted
suicide, she responded, “I had a bad reaction to a medication”; “I
was going to the doctors all the time, everyone was just treating me
for anxiety and the medications weren’t fixing it”; and “without the
medication being right my mind wasn’t right and, and I, I don’t
know, I know it wasn’t the right choice.” She also told the insurance
adjuster “I think it’s due to my medications not being where they
should have been.”
¶5 Heslop expressed concern that admitting the crash was a
suicide attempt would impact her coverage. Her insurance policy’s
property damage provision covers only “accidental loss of or
damage to [a] covered car.” And the policy’s intentional injury
exclusion provision “does not apply . . . to any injured person, if the
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person’s conduct contributed to his injury . . . by intentionally
causing injury to himself.” 1
¶6 The Heslops attempted to collect from Bear River under both
a personal injury protection (PIP) claim for Heslop’s personal
injuries and a property damage claim for damage to the truck. But
ten days after Heslop’s interview with the insurance adjuster, the
Heslops received a letter from Bear River denying their claims. Bear
River based its denial on Heslop’s admission that she intended to
drive down the embankment. It explained that because Heslop
“admitted to us that she was trying to use the vehicle to intentionally
take her life by driving off the cliff, we cannot see how this can be
considered ‘accidental’ loss.”
¶7 The Heslops asked Bear River to reconsider its decision. In
support of their request, the Heslops forwarded a letter from
Heslop’s psychiatrist, Dr. Ben Holt. Dr. Holt had begun treating
Heslop after the incident. Dr. Holt explained that the day before the
crash, Heslop had “overdosed on a large amount of Ambien and
Lexapro in a suicide attempt.” Dr. Holt stated that as a result of
ingesting the drugs, Heslop had developed “serotonin syndrome,”
which can induce “agitated delirium” and “disorientation,” among
other things. Dr. Holt explained that “[s]ome of the irrational
behavior [Heslop] experienced, including driving her car off the
road[,] could be contributed [sic] to the serotonin syndrome and
possible agitated delirium and disorientation she experienced after
the overdose the day prior to the incident.”
¶8 In February 2015, the Heslops filed a complaint against Bear
River alleging breach of contract, breach of the covenant of good
faith and fair dealing, statutory relief, and intentional infliction of
emotional distress. In April, Bear River moved for summary
judgment. It argued that both Utah Code section 31A-22-309 and the
terms of the insurance policy barred the Heslops’ claim. Bear River
contended that the Heslops could not be compensated for property
damage because the “crash was not accidental in nature, but the
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1 This intentional injury exclusion provision mirrors the language
of Utah Code section 31A-22-309(2)(a)(iii), which allows for
exclusion of personal injury protection coverage benefits “to any
injured person, if the person’s conduct contributed to his injury . . .
by intentionally causing injury to himself.”
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Opinion of the Court
result of Ms. Heslop’s intentional effort to crash her vehicle.” It
reasoned that Dr. Holt’s letter averring that Heslop’s serotonin
syndrome “could contribute to ‘irrational acts,’ . . . did not opine that
it did contribute to her act, or more importantly, that [it] negated her
intent.” Bear River argued, “there is no dispute that Ms. Heslop
contributed to her injuries when she intentionally drove her vehicle
off the Ogden Canyon roadway in a suicide attempt.”
¶9 The Heslops opposed Bear River’s motion for summary
judgment. They contended that “[t]here is a genuine issue of
material fact as to whether [Heslop] had the mental capacity to
perform an intentional act.” The Heslops cited Hoffman v. Life
Insurance Company of North America for the proposition that “mental
disease or defect of the insured is a relevant consideration in
determining whether an insured’s [injury] is accidental.” 669 P.2d
410, 419 (Utah 1983). They further cited Hoffman for the proposition
that
where the insured suffers from a mental disease or
defect so that he is not likely to be able to appreciate
the consequences of his conduct, or cannot control his
conduct in light of the probable consequences, then the
test is subjective, and [injury] may be accidental even
though a rational person in the same circumstances
would have expected [injury] to be the probable result
of his conduct.
Id.
¶10 The Heslops also offered a letter from Dr. Michael
Crookston. Dr. Crookston’s letter spoke to the likely effects of
Ambien on Heslop the day of the crash. He did not interview
Heslop, but he reviewed Dr. Holt’s letter. Dr. Crookston averred that
[s]ince Ms. Heslop took an overdose of Ambien, any
and all statements she may have made concerning
subsequent events, including the next day, are
immediately suspect and unreliable. Under the
influence of an Ambien overdose it is highly likely that
Ms. Heslop was impaired cognitively and therefore
could not fully appreciate the consequences of her
actions or have the ability to fully control her actions.
¶11 At the end of their memorandum, the Heslops asked the
court for a continuance. The Heslops requested—citing Utah Rule of
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Civil Procedure 56(f) 2—additional time to permit “further
discovery” into Heslop’s “mental state, capacity, the effects of
serotonin syndrome, or the effects of large amounts of Ambien and
Lexapro to the human system.” In support of this request, the
Heslops included a sworn affidavit of their attorney. The attorney
stated that he believed “additional discovery is required prior to this
matter being able to be fully adjudicated on the merits.” He opined
that he also believed both Dr. Holt and Dr. Crookston “would testify
under oath as to the veracity of the information and opinions
currently contained in their letters.”
¶12 The district court granted Bear River’s motion for summary
judgment. It stated that Heslop’s PIP coverage was governed by the
Utah statute and the insurance policy’s intentional injury exclusion
provision. The court noted a Michigan case in which the insured had
intentionally crashed his car in a suicide attempt and had introduced
an affidavit from a medical professional stating that he was severely
depressed, coming off prescription drugs, and lacked the mental
capacity to form the intent to commit suicide. Miller v. Farm Bureau
Mut. Ins. Co., 553 N.W.2d 371, 377 (Mich. Ct. App. 1996). The Miller
court held that the “intentional acts” clause in the policy prevented
the insured from collecting under the policy. Id. The district court
adopted the Michigan case’s reasoning that “when the evidence
unequivocally shows that the insured intended his or her actions, the
existence of mental illness does not alter that conclusion.” Id.
¶13 The district court further reasoned that “Dr. Holt’s [letter]
did not opine that the Serotonin Syndrome contribute[d] to Mrs.
Heslop’s act, or that Serotonin Syndrome negated her intent.” It
further noted that Dr. Crookston’s letter did not opine “that [Heslop]
was ‘sleep driving’ at the time she drove off the road, or that she
cannot remember what she did.” In the end, the court found that the
doctors’ equivocal statements regarding Heslop’s mental status did
not sufficiently rebut “the undisputed facts [that] unequivocally
show that [Heslop] intended to drive off the road in a suicide
attempt.”
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2 In 2015, rule 56(f) became rule 56(d). See UTAH R. CIV. P. 56
(2015). We, thus, refer to the 2014 Utah Rules of Civil Procedure—
which govern this case—and keep the reference to rule 56(f).
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¶14 The district court concluded, “There is no dispute that Mrs.
Heslop expected to be injured when she drove off the Ogden
Canyon road or that she intended to kill herself. Accordingly, the
intentional acts exclusion of the Policy and Utah Code . . . apply in
this case.” It further concluded that “Brandon Heslop’s first-party
cause of action against [Bear River] also fails as a matter of law due
to the intentional acts exclusion,” because “he is part owner and a
named insured of the vehicle, not a third-party victim in this
accident” and because Utah law “does not require that Defendant
insure itself against loss imposed by the law for damages caused by
its named insured.” “Rather,” the court stated, “liability falls upon
[Heslop], who is also a named insured and the one who caused the
damage.”
ISSUES AND STANDARDS OF REVIEW
¶15 The Heslops contend that the district court erred when it
granted summary judgment both “on the issue of Personal Injury
Protection (PIP) coverage” and “on the issue of property damage.”
We review a grant of summary judgment for correctness. Helf v.
Chevron U.S.A. Inc., 2015 UT 81, ¶ 46, 361 P.3d 63. We give no
deference to the district court’s legal conclusions and consider
whether the court correctly decided “that no genuine issue of
material fact existed.” Id. We “review the facts in a light most
favorable to the party against whom summary judgment was
granted.” Larson v. Wycoff Co., 624 P.2d 1151, 1153 (Utah 1981).
¶16 The Heslops also contend that the district court abused its
discretion when it denied their rule 56(f) motion for a continuance.
See UTAH R. CIV. P. 56(f) (2014). We review a district court’s grant or
denial of a rule 56(f) motion for abuse of discretion. Crossland Sav. v.
Hatch, 877 P.2d 1241, 1243 (Utah 1994). “[W]e will not reverse unless
the [court’s] decision exceeds the limits of reasonability.” Id.
ANALYSIS
I. The District Court Appropriately Granted Summary Judgment
to Bear River on the Personal Injury Protection Claim
¶17 The Heslops contend that “the district court erred in
granting Bear River’s motion for summary judgment on the issue of
PIP coverage” because there is a genuine issue of material fact
concerning Heslop’s ability “to form intent at the time of her
injuries.” The Heslops argue that both Heslop’s interview and the
doctors’ letters raise a factual question as to Heslop’s ability to form
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intent. They also contend that the district court erred by adopting the
Michigan court’s reasoning that the existence of mental illness does
not prevent a court from concluding that an insured’s actions are
intentional.
¶18 The district court found that the intentional injury exclusion
provision in Heslop’s policy defeated her PIP claim because Heslop
admitted she intentionally drove her car off the road. The court
noted that, “in determining whether an injury was accidental or
intentional, the Utah Supreme Court has focused on whether the
result was intended or expected.” (Citing N.M. ex rel Caleb v. Daniel
E., 2008 UT 1, ¶ 11, 175 P.3d 566 (citing Hoffman v. Life Ins. Co. of N.
Am., 669 P.2d 410, 416 (Utah 1983))). But the district court also
applied the Miller test from Michigan, explaining that “when the
evidence unequivocally shows that the insured intended his or her
actions, the existence of mental illness does not alter that
conclusion.” Miller v. Farm Bureau Mut. Ins. Co., 553 N.W.2d 371, 377
(Mich. Ct. App. 1996).
¶19 In finding that there was no genuine issue of material fact as
to Heslop’s intent, the court reasoned that Dr. Holt “did not opine
that the Serotonin Syndrome contribute[d] to [Heslop’s] act, or that
[it] negated her intent.” It further reasoned that Dr. Crookston’s
letter on the effects of Ambien did not opine that Heslop was “‘sleep
driving’ at the time she drove off the road, or that she [could not]
remember what she did.” The district court thus concluded that
[t]he undisputed facts in this case demonstrate that
[Heslop’s] intent was to commit suicide, regardless of
Serotonin Syndrome, prior medication usage, or
knowing such was a “wrong choice.” There is no
dispute that [Heslop] expected to be injured when she
drove off the Ogden Canyon Road or that she intended
to kill herself.
¶20 “We review [a] district court’s summary judgment ruling for
correctness, granting no deference to its legal conclusions, and
consider whether it correctly concluded that no genuine issue of
material fact existed.” Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 46,
361 P.3d 63 (alteration in original). In determining whether a factual
dispute exists, we apply “an objective standard.” Clegg v. Wasatch
Cty., 2010 UT 5, ¶ 15, 227 P.3d 1243. The objective standard asks
“whether reasonable jurors, properly instructed, would be able to
come to only one conclusion, or if they might come to different
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conclusions, thereby making summary judgment inappropriate.” Id.
But “where there could be no reasonable difference of opinion on [a
question of fact] in light of the available evidence, ‘the decision is
one of law for the trial judge or for an appellate court.’” AMS Salt
Indus., Inc. v. Magnesium Corp. of Am., 942 P.2d 315, 320 (Utah 1997)
(citation omitted).
¶21 In the summary judgment context, “[t]he word ‘genuine’
indicates that a district court is not required to draw every possible
inference of fact, no matter how remote or improbable, in favor of
the nonmoving party.” IHC Health Servs., Inc. v. D & K Mgmt., Inc.,
2008 UT 73, ¶ 19, 196 P.3d 588. “Instead, it is required to draw all
reasonable inferences in favor of the nonmoving party.” Id. (emphasis
in original). And although circumstantial evidence may sometimes
raise an inference strong enough to create a genuine issue of material
fact on summary judgment, to be reasonable, the inference must
present something more than pure speculation. See USA Power, LLC
v. PacifiCorp, 2016 UT 20, ¶ 137, 372 P.3d 629; State v. Hester, 2000 UT
App 159, ¶ 16, 3 P.3d 725 (noting the difference between drawing a
reasonable inference and “merely speculating about possibilities”).
¶22 In distinguishing between a reasonable inference and
speculation, an “inference is a deduction as to the existence of a fact
which human experience teaches us can reasonably and logically be
drawn from proof of other facts.” Manchester v. Dugan, 247 A.2d 827,
829 (Me. 1968). Speculation, on the other hand, is the “act or practice
of theorizing about matters over which there is no certain
knowledge.” Speculation, BLACK’S LAW DICTIONARY (10th ed. 2014).
Of course, “there is no black line between inference and
speculation.” Hester, 2000 UT App 159, ¶ 17. But a reasonable
inference exists when “there is at least a foundation in the evidence
upon which the ultimate conclusion is based,” while “in the case of
speculation, there is no underlying evidence to support the
conclusion.” Harding v. Atlas Title Ins. Agency, Inc., 2012 UT App 236,
¶ 7, 285 P.3d 1260.
¶23 “A single sworn statement is sufficient to create an issue of
fact.” Webster v. Sill, 675 P.2d 1170, 1172 (Utah 1983). But
an affidavit must do more than reflect the affiant’s
opinions and conclusions. The affidavit must ‘set forth
specific facts’ showing there is a genuine issue for trial.
The mere assertion that an issue of fact exists without a
proper evidentiary foundation to support that assertion
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is insufficient to preclude the granting of a summary
judgment motion.
Id. (citations omitted).
¶24 In sum, we will “affirm a grant of summary judgment only
if there are no disputed issues of material fact and, with the facts and
all reasonable inferences viewed in the light most favorable to the
nonmoving party, the moving party is entitled to judgment as a
matter of law.” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 36,
250 P.3d 465.
A. A district court may consider an insured’s mental disease or
defect when determining whether injuries are accidental or intentional
¶25 The district court correctly noted that “in determining
whether an injury was accidental or intentional, the Utah Supreme
Court has focused on whether the result was intended or expected.”
Relying on Miller, the district court also concluded that, “when the
evidence unequivocally shows that the insured intended his or her
actions, the existence of mental illness does not alter that
conclusion.” Miller v. Farm Bureau Mut. Ins. Co., 553 N.W.2d 371, 377
(Mich. Ct. App. 1996). The Heslops contend that the Miller test
stands “in direct opposition to Utah Law.”
¶26 Although “direct opposition” overstates the point, we
generally agree with the Heslops that Miller’s standard does not
accurately reflect the way Utah courts have approached the question.
Instead, we recognize that the effects of mental illness can impact the
ability of an insured to intend her actions. In Hoffman v. Life Insurance
Company of North America, we stated that in Utah, “[t]he law is firmly
established that the mental disease or defect of the insured is a
relevant consideration in determining whether an insured’s death is
accidental.” 669 P.2d 410, 419 (Utah 1983).
¶27 In the insurance context, we have defined “accident” as
descriptive of means [that] produce effects [that] are
not their natural and probable consequences. . . . The
[natural and] probable consequence of the use of given
means is the consequence [that] is more likely to follow
from their use than it is to fail to follow.
N.M. ex rel. Caleb v. Daniel E., 2008 UT 1, ¶ 6, 175 P.3d 566 (citing
Richards v. Standard Accident Ins. Co., 200 P. 1017, 1023 (Utah 1921)
(omission in original). If a result is “the natural and probable
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consequence of an act or course of action,” it is not accidental. N.M.,
2008 UT 1, ¶ 6.
¶28 We determine “what is natural and probable from the
insured’s perspective.” Id. ¶ 9. But we assume, unless the evidence
demonstrates otherwise, that the insured is an average person who
will understand the natural and probable consequences of her
actions. See id. (“[W]e apply ‘an objective test unless the evidence
shows that the insured is not an “average individual.”’” (citation
omitted)). In other words, “[e]ach individual may be considered the
average individual unless the facts disclose that in reality he is not.”
Hoffman, 669 P.2d at 419 (citation omitted). “[W]hen the facts do so
show, then the question of the accidental nature of the result must be
measured by this knowledge.” Id.
¶29 For example, in N.M., we acknowledged that an eight-year-
old child was not the average insured because “eight–year-old
children lack the experience, maturity and reasoning skills of
adults.” 2008 UT 1, ¶ 9. Similarly, in Hoffman, we suggested that the
insured’s mental delusions likely prevented him from understanding
the consequences of his actions in the same way the average person
would. 669 P.2d at 420. Thus, “when the actual state of mind of the
insured can be established, the probability of [injury] resulting from
certain conduct should be judged in light of that state of mind.” Id. at
419.
¶30 This is not to say, however, that the existence of mental
illness leads inexorably to the conclusion that the insured did not
understand the natural and probable consequences of her actions.
On the contrary, “if the insured actually knows that his or her
[injury] is more likely than not to occur, the [injury] is not
accidental.” Id. Hoffman instructs the court to consider whether the
insured “subjectively expect[ed]” her conduct to cause the likely
consequences of her actions. Id. Thus, “if the insured cannot
subjectively expect [her] conduct will produce [her injury] because of
a mental disease or defect, the [injury] is accidental.” Id. Where
mental illness is concerned, Hoffman instructs that it is only where
(1) the insured “is not likely to be able to appreciate the
consequences of [her] conduct” or (2) “cannot control [her] conduct
in light of the probable consequences” that the court should consider
an occurrence to be accidental, “even though a rational person in the
same circumstances would have expected [injury] to be the probable
result of [her] conduct.” Id.
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¶30 The Heslops’ appeal thus turns upon whether the evidence
they forward to defeat summary judgment creates a genuine issue of
material fact on the questions of whether Heslop (1) could appreciate
the consequences of driving down the embankment or (2) could
control herself from driving off the road even in light of likely injury
or death. 3
B. Heslop did not provide evidence sufficient to create a genuine issue
of material fact on the questions of whether she could appreciate the
consequences of her actions and whether she could control her actions
in light of their probable consequences
¶31 The Heslops relied on two doctors’ letters to show that
“there is a genuine issue of material fact” as to whether Heslop had
“the mental capacity to ‘intentionally cause [. . .] injury to [her]self.’”
¶32 Dr. Holt’s letter opined on a condition known as “serotonin
syndrome”:
Some of the irrational behavior [Heslop] experienced,
including driving her car off the road[,] could be
contributed [sic] to the serotonin syndrome and possible
agitated delirium and disorientation she experienced
after the overdose the day prior to the incident.
(Emphases added.) Dr. Crookston’s letter opined on the effects of
Ambien in the system:
[I]t is highly likely that Ms. Heslop was impaired
cognitively and therefore could not fully appreciate the
consequences of her actions or have the ability to fully
control her actions.
(Emphases added.)
¶33 But neither letter supports the conclusion that Heslop failed
“to appreciate the consequences of [her] conduct.” Hoffman, 669 P.2d
at 419. To be clear, under Hoffman, evidence supporting a reasonable
inference that Heslop failed to appreciate the consequences of her
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3 For purposes of this analysis, we assume without concluding
that Heslop forwarded sufficient evidence to create a genuine issue
of material fact on the existence of a mental illness that would permit
the court to analyze whether she subjectively understood the
consequences of her actions.
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conduct did not require Drs. Holt and Crookston to repeat verbatim
the Hoffman test. But for Heslop to defeat summary judgment, the
doctors needed to provide testimony that would allow a jury to
draw a reasonable inference about Heslop’s inability to appreciate
the consequences of her actions. A party does not create a genuine
issue of material fact when she submits evidence that simply invites
the jury to speculate as to what happened. See USA Power, 2016 UT
20, ¶ 137. But that is what Heslop did here.
¶31 Dr. Crookston’s letter provides the only evidence the jury
could rely upon to conclude that Heslop could not appreciate the
consequences of her actions. That letter stated that “it is highly likely
that Ms. Heslop was impaired cognitively and therefore could not
fully appreciate the consequences of her actions.” Dr. Crookston’s
letter uses language similar to Hoffman’s, but Dr. Crookston tempers
his conclusion with the qualification “fully.” Thus, instead of an
opinion that Heslop could not appreciate her actions, Dr.
Crookston’s letter describes a high likelihood that she could not
“fully appreciate” the consequences of those actions.
¶32 This qualified opinion did not provide the jury a basis to do
anything other than speculate as to whether one of the consequences
Dr. Crookston suggests Heslop may not have fully understood is the
consequence at the heart of this matter—that driving a car off the
road can result in injury or death. A car accident may have many
consequences. The more obvious consequences involve damage to
the car and injury to the driver. The less obvious consequences might
include distress to those who observe the crash and the need to
deploy emergency services to respond. To create a genuine issue of
material fact, Dr. Crookston’s letter needed to provide a reasonable
basis for a jury to infer that Heslop did not comprehend that death
or injury would be the consequence she would suffer if she drove off
the road. Instead, Dr. Crookston’s letter invites the jury to speculate
as to what behavior was included and excluded by the phrase “fully
appreciate.” Without more specificity from Dr. Crookston, a trier of
fact would be left to speculate about whether Dr. Crookston’s
opinion spoke to an inability to understand the seemingly obvious
consequences of Heslop’s actions. In other words, Dr. Crookston’s
opinion by itself is insufficient to support a reasonable inference that,
because of Heslop’s mental state, she did not understand that she
would likely be hurt if she drove her car off the road. To create a
genuine issue of material fact, Heslop needed to provide either a
more specific opinion from Dr. Crookston or place other evidence in
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the record that would allow a jury to infer that one of the
consequences Dr. Crookston’s statement referenced was injury or
death. 4
¶34 Moreover, the jury’s ability to reasonably infer that Dr.
Crookston’s opinion referred to Heslop’s ability to understand the
consequences of leaving the road is undone by the overwhelming
evidence before the district court—including Heslop’s own
statements—that supports a finding that Heslop did in fact
appreciate that harm would result from driving off the road. Heslop
told Bear River’s insurance adjuster that “driving off the cliff” “was
pretty much a suicide attempt.” When the adjuster then asked, “and
then what, you just saw an edge there and decided, you know, this is
it?” Heslop replied, “Yeah.” And when the adjuster asked Heslop if
she had admitted to anybody else that her crash was a suicide
attempt, Heslop told him, “my whole family knows . . . , I told the
police[,] and all the doctors knew.” Unfortunately, the evidence
firmly establishes that Heslop understood that the natural and
probable consequences of driving off the road would be death or
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4 The Heslops also contend that the district court unfairly
dismissed Dr. Crookston’s letter because the court noted that the
source of his opinion came from reading Dr. Holt’s letter rather than
examining Heslop himself. See, e.g., Willey v. Bugden, 2013 UT App
297, ¶ 28, 318 P.3d 757 (“‘[W]eighing credibility and assigning
weight to conflicting evidence’ is not appropriate at the summary
judgment stage.” (Citation omitted)). The district court noted that
Dr. Crookston “reviewed Dr. Holt’s letter” and opined on the effects
of Ambien. But the district court did not weigh evidence or dismiss
Dr. Crookston’s letter. Rather, it commented on the source of the
doctor’s knowledge—Dr. Holt’s letter—just as it commented on the
source of Dr. Holt’s knowledge—Heslop’s psychiatric interviews.
But noting the foundational basis of a witness’s knowledge is not
weighing evidence or assessing credibility. And ultimately, the
district court did not rule against the Heslops because it found that
the doctor’s testimony lacked credibility; it ruled that the doctors
had not provided the evidence needed to create a genuine issue of
material fact on the relevant questions.
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injury, and Dr. Crookston’s vague opinion was insufficient to permit
a jury to infer otherwise. 5
¶35 The Heslops next contend that “the possibility alone” that
serotonin syndrome did, in fact, contribute to or cause irrational
behavior “is enough to defeat a motion for summary judgment
because a reasonable jury could find that serotonin syndrome did
contribute to her behavior.” Thus, they seem to argue that Heslop
could not control her actions, even if she could appreciate them. But
this claim fails for similar reasons.
¶36 In support of this contention, the Heslops again offer Dr.
Crookston’s letter. But in discussing Heslop’s ability to control her
actions on the day of the crash, Dr. Crookston’s letter again
equivocates. Thus, instead of a statement claiming that Heslop could
not control her actions, Dr. Crookston’s letter suggests a high
likelihood that she could not “fully control” them. And again, this
equivocal statement, standing alone, does not provide the jury with a
reasonable basis to infer that Heslop could not in fact stop herself
from driving off the road even though she knew she would be
injured or killed.
¶37 The Heslops also contend that Dr. Holt’s letter, “in and of
itself, creates a genuine issue of material fact.” They believe his letter
“makes clear that [Heslop’s] behavior was not only irrational, but
that the serotonin syndrome could have contributed to her behavior.”
_____________________________________________________________
5 The Heslops suggest that Heslop’s admission to Bear River’s
insurance adjuster is suspect because Heslop was under the
influence of medication at the time of the incident and because “her
prescription medications played a role in her behavior.” But
Heslop’s statement to Bear River was made ten days after the crash,
when Heslop had the benefits of sobriety and hindsight. What’s
more, none of Heslop’s experts opined that her statement to Bear
River was unreliable. The Heslops further argue that Heslop’s
statement that she “just wanted to take a drive up the canyon . . . to
look at the leaves” also calls her admission into question. But
Heslop’s statement that she took a drive up the canyon to look at the
leaves is not necessarily inconsistent with her later decision to drive
her truck off the road, nor was it suspect for any reason Heslop
forwards.
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(Emphasis added.) But while Dr. Holt’s letter unequivocally states
that Heslop developed serotonin syndrome and that she was
experiencing its effects the day after her accident, it suffers from the
same defect as Dr. Crookston’s letter: it does not opine or otherwise
support a reasonable inference that Heslop could not control her
actions despite their consequences when she drove off the
embankment. Rather, Dr. Holt writes that “[s]ome” of Heslop’s
irrational behavior “could be” attributed to “possible” effects of
serotonin syndrome. (Emphases added.) An expert opinion that a
medication could have contributed to an unspecified “some of” a
person’s behavior does not, by itself, allow a reasonable jury to infer
that that person could not in fact control herself from engaging in a
specific behavior. Dr. Holt’s opinion standing alone did not provide
evidence that would allow a jury to do anything more than speculate
as to the effect of the medication and whether one of those effects
was Heslop’s inability to stop herself from driving off the road.
¶38 By contrast, in Hoffman, Hoffman’s doctor “testified that on
the day of his death, Hoffman ‘was psychotic and at that time not
able to make sound rational judgments.’” Hoffman, 669 P.2d at 415
(emphasis added). He also testified that “because of the highly
unstable nature of [Hoffman’s] whole emotional state at that time,
any unexpected, intense, or threatening incident would have caused
a reaction of unreasonable magnitude, an unpredictable reaction.” Id.
He opined that such a reaction “was a product of Hoffman’s mental
illness.” Id. This court concluded that
on the basis of the evidence [before it,] the trial court
could have found that Hoffman was suffering from a
mental disease or defect that prevented him from
appreciating the consequences of his conduct or
controlling his conduct in light of the circumstances.
[Hoffman’s doctor] testified that, at the time of his
death, Hoffman was unable to appreciate the
consequences of his actions, i.e., he was unable to make
sound rational judgments; could not control his
conduct in light of the consequences; and any
unreasonable and unpredictable action by Hoffman
under the circumstances was a product of his mental
illness.
Id. at 420. While Hoffman’s doctor spoke in unequivocal terms
regarding Hoffman’s mental state, Heslop’s doctors do not. Indeed,
this seemed to be the district court’s concern when it noted that the
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Opinion of the Court
doctors’ letters failed to state “that [Heslop] was ‘sleep driving’ at
the time she drove off the road, or that she [could not] remember
what she did.”
¶39 In the end, neither letter does the work it needed to do:
provide the jury with a basis to conclude that Heslop did not
understand that driving off the road would result in injury or that,
even in light of that expectation, Heslop could not control herself
from driving off the embankment. See Hoffman, 669 P.2d at 419.
¶40 The Heslops correctly argue that the test the district court
needed to apply is the one Hoffman articulates. But the Heslops bore
the burden of forwarding evidence that Heslop did not understand
the consequences of her actions or that she could not control her
actions. The evidence they offer, in the form of letters from Drs.
Crookston and Holt, fails to create a genuine issue of material fact on
either of those issues.
II. The District Court Appropriately Granted Summary
Judgment to Bear River on the Property Damage Claim
¶41 The Heslops also contend that “the district court erred in
granting Bear River’s motion for summary judgment on the issue of
property damage coverage.”
¶42 The property damage provision in the Heslops’ policy
provides compensation for “each direct and accidental loss of or
damage to your covered car.” The Heslops advance two arguments
that the district court improperly granted summary judgment on this
claim. First, they argue that the exclusion did not apply “for the
same reasons [stated] above”—i.e., that the district court should
have acknowledged a genuine issue of fact on the question of
whether the crash was accidental. And we dispose of this argument
on the grounds articulated above.
¶43 Second, the Heslops argue that Brandon Helsop should
recover for damages to his truck because he “should be considered
an accident victim.” Unfortunately, this argument is inadequately
briefed. “It is well established that a reviewing court will not address
arguments that are not adequately briefed.” State v. Thomas, 961 P.2d
299, 304 (Utah 1998); State v. Wareham, 772 P.2d 960, 966 (Utah 1989)
(declining to rule on issue where defendant’s brief “wholly lack[ed]
legal analysis and authority to support his argument”); State v.
Amicone, 689 P.2d 1341, 1344 (Utah 1984) (declining to rule on
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Opinion of the Court
separation of powers argument where argument was not supported
“by any legal analysis or authority”).
¶44 “In deciding whether an argument has been adequately
briefed, we look to the standard set forth in rule 24(a)(9) of the Utah
Rules of Appellate Procedure.” Thomas, 961 P.2d at 305. “This rule
states that the argument in the appellant’s brief ‘shall contain the
contentions and reasons of the appellant with respect to the issues
presented . . . with citations to the authorities, statutes and parts of
the record relied on.’” Id. (citation omitted) (omission in original).
“Implicitly, rule 24(a)(9) requires not just bald citation to authority
but development of that authority and reasoned analysis based on
that authority.” Id. We have stated—and repeated—that appellate
courts “[are] not . . . depositor[ies] in which the appealing party may
dump the burden of argument and research.” Id.
¶45 In State v. Thomas, we upheld the court of appeals’ decision
not to consider an inadequately briefed argument. Id. In Thomas, the
appellant’s argument cited legal authority, including two
amendments to the United States Constitution and one Utah case,
but contained no reasoned analysis or reference to controlling cases.
Id. “Analysis of what this authority requires and of how the facts of
Thomas’s case satisfy these requirements was wholly lacking.” Id.
There, we stated that, “[w]hile failure to cite to pertinent authority
may not always render an issue inadequately briefed, it does so
when the overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.” Id.
¶46 In similar fashion, the Heslops’ argument refers this court to
one case, Speros v. Fricke, 2004 UT 69, 98 P.3d 28, and abruptly ends.
The Heslops do not explain why Speros applies here or how Brandon
Heslop qualifies as a victim under Speros. The argument also fails to
identify certain material facts, for example whether Natalie Heslop
was a co-owner of the truck or a co-insured on the policy. It entirely
“dump[s] the burden of argument and research” upon this court to
make its argument for it. See Thomas, 961 P.2d at 305.
¶47 While this court will not lightly toss aside partially briefed
but still discernable arguments, we are limited by the practical
considerations that an unbriefed argument presents. Here, we cannot
determine the merits of the Heslops’ claim that Brandon Heslop was
a victim of his wife’s car crash and is entitled to recover under the
damages provision of the insurance policy. While there is no bright
line between adequate and inadequate briefing, the Heslops have
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HESLOP v. BEAR RIVER
Opinion of the Court
not developed an argument sufficient to carry their burden of
persuasion. See Bank of America v. Adamson, 2017 UT 2, ¶ 12, ___ P.3d
___ (“an appellant who fails to adequately brief an issue ‘will almost
certainly fail to carry its burden of persuasion on appeal’”) (citation
omitted). As such, we cannot say that the district court erred by
granting summary judgment on that claim.
III. The District Court Did Not Abuse Its Discretion when
It Denied Heslop’s Rule 56(f) Motion for a Continuance
¶48 The Heslops also contend that the district court abused its
discretion when it denied their rule 56(f) motion for a continuance to
permit additional discovery. See UTAH R. CIV. P. 56(f) (2014). We
review a district court’s grant or denial of a rule 56(f) motion for
abuse of discretion. Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah
1994). “[W]e will not reverse unless the [court’s] decision exceeds the
limits of reasonability.” Id.
¶49 “Rule 56(f) allows the opposing party to submit an affidavit
stating the reasons ‘[she] is presently unable to present evidentiary
affidavits essential to support [her] opposition to summary
judgment.’” Aspenwood, L.L.C. v. C.A.T., L.L.C., 2003 UT App 28, ¶ 19,
73 P.3d 947 (citation omitted). That explanation “must present facts
in proper form. . . . And the opposing party’s facts must be material
and of a substantial nature.’” Callioux v. Progressive Ins. Co., 745 P.2d
838, 841 (Utah Ct. App. 1987) (omission in original) (citation
omitted). “If the court finds the reasons to be adequate [it may] . . .
order that further discovery be conducted and continue the
summary judgment motion.” Aspenwood, 2003 UT App 28, ¶ 19
(omission in original) (emphasis added).
¶50 A district court does not abuse its discretion in denying
such a motion where “the reasons . . . articulated in its affidavit
would produce only cumulative evidence.” Sandy City v. Salt Lake
Cty., 794 P.2d 482, 490 (Utah Ct. App. 1990), rev’d in part on other
grounds by Sandy City v. Salt Lake Cty., 827 P.2d 212 (Utah 1992). A
district court may deny a rule 56(f) motion for a continuance when
that motion is “dilatory or lacking merit.” Price Dev. Co., L.P. v. Orem
City, 2000 UT 26, ¶ 30, 995 P.2d 1237.
¶51 Moreover, conclusory claims do not sufficiently support a
motion to continue. Thus, the party opposing summary judgment
must “explain how the continuance will aid [her] opposition to
summary judgment.” Callioux, 745 P.2d at 841 (Utah Ct. App. 1987);
Robinson v. Jones Waldo Holbrook & McDonough, PC, 2016 UT App 34,
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Opinion of the Court
¶ 19, 369 P.3d 119 (“A district court may refuse further discovery
where the plaintiff ‘fail[s] to explain in [her] affidavit how additional
discovery would aid [her] opposition to summary judgment.’”
(alteration in original) (citation omitted)). Otherwise, overly broad
areas of inquiry may suggest to a court that a party is involved in a
“fishing expedition” rather than a sincere opportunity to provide the
court with information that will defeat summary judgment. See
Nelson v. Target Corp., 2014 UT App 205, ¶ 29, 334 P.3d 1010 (stating
that relevant factors in determining whether a rule 56(f) motion is
warranted include “if the party requesting discovery is simply on a
‘fishing expedition’” (citation omitted)).
¶52 The Heslops did not file a separate rule 56(f) motion.
Instead, the “motion” consists of a five-sentence paragraph tacked
onto the end of their memorandum in opposition to Bear River’s
motion for summary judgment. The motion fails to explain in any
detail what information the Heslops wished to discover, whom they
wished to depose, or what their doctors would say in addition to
what they had already said. Instead, it petitions the district court
broadly to grant a rule 56(f) motion for further discovery into
Heslop’s “mental state, capacity, the effects of serotonin syndrome,
or the effects of large amounts of Ambien and Lexapro to the human
system.” From this request, it is unclear what specific information
the Heslops believed additional time would allow them to discover.
¶53 Nothing in the Heslops’ rule 56(f) motion mandated the
conclusion that upon further discovery a genuine issue of material
fact would arise. The breadth of the Heslops’ request without an
accompanying statement explaining how the continuance would aid
them in opposing summary judgment suggests that the Heslops
would not be able to present the district court with further evidence
that would defeat summary judgment. At the very least, given the
paucity of information the Heslops provided the district court about
its need for additional discovery, we cannot say that the district
court’s denial of the rule 56(f) motion was an abuse of discretion or
that its decision exceeded the “limits of reasonability.” See Crossland
Sav., 877 P.2d at 1243 (citation omitted).
CONCLUSION
¶54 The district court appropriately granted Bear River’s motion
for summary judgment on the personal injury claims. The district
court correctly noted that Heslop admitted that she intentionally
drove her truck off the road. The Heslops failed to provide the
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Opinion of the Court
district court with sufficient evidence to permit a reasonable jury to
conclude that Heslop either did not understand the natural and
probable consequences of driving off the road or that she was unable
to control her actions. For the same reason, the district court did not
err in granting summary judgment on Heslops’ property damages
claim that was premised on the same argument. The Heslops’ claim
that Brandon Heslop should be considered a victim and permitted to
recover property damages is insufficiently briefed. Furthermore, the
rule 56(f) motion before the district court made only conclusory
claims and suggested only cumulative evidence for further
discovery. We thus cannot say the district court abused its discretion
in refusing to grant a continuance. We affirm the district court’s
grant of summary judgment.
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