Zeller v. Nixon , 2015 UT 57 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter.
2015 UT 57IN THE
SUPREME COURT OF THE STATE OF UTAH
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ROBERT ERVAN ZELLER and TERRI ZELLER,
Appellees,
v.
CHARLOTTE NIXON,
Appellant.
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No. 20130775
Filed July 21, 2015
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First District, Logan Dep’t
The Honorable Kevin K. Allen
No. 120100210
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Attorneys:
Matthew R. Feller, Mark K. Carlson, Brian L. Hansen, for appellee
R. Phil Ivie, Dallas B. Young, Provo, for appellant
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ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE PARRISH,
and JUSTICE HIMONAS joined.
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ASSOCIATE CHIEF JUSTICE LEE: opinion of the Court:
¶1 This is a personal injury action arising out of an automobile
accident. The accident occurred when Charlotte Nixon crossed the
center line on 200 East near 900 North in Logan. Her car collided
with a vehicle driven by Robert Zeller. Robert and his wife Terri
filed a complaint against Ms. Nixon alleging claims for negligence
and loss of consortium.
¶2 The Zellers submitted their claims for arbitration under
Utah Code section 31A-22-321. In so doing, they accepted certain
statutory limits on their damages. See UTAH CODE § 31A-22-321(3)
(barring punitive damages for a claim submitted to arbitration
under this provision); id. § 31A-22-321(2)(a) (providing that the
plaintiff “is limited to an arbitration award that does not exceed
ZELLER v. NIXON
Opinion of the Court
$50,000 in addition to any available personal injury protection
benefits and any claim for property damage”). But they also opted
in to a system (arbitration) that is thought to be quicker and less
expensive than full-blown litigation. See id. § 31A-22-321(5)(b) (re-
quiring discovery under this provision to “be completed within
150 days after the date arbitration is elected”).
¶3 To facilitate the orderly disposition of claims, section 321
prescribes the terms for opting in to arbitration under this provi-
sion. It states that “[a] person injured as a result of a motor vehicle
accident may elect to submit all third party bodily injury claims to
arbitration by filing a notice of the submission of the claim to
binding arbitration in a district court.” Id. § 31A-22-321(1). And it
also provides that the election of arbitration stands unless a notice
of rescission is filed “within: (i) 90 days after the election to arbi-
trate; and (ii) no less than 30 days before any scheduled arbitra-
tion hearing.” Id. § 31A-22-321(4)(a).
¶4 The Zellers did not file a notice of rescission within 90 days
of electing arbitration. Beyond the 90-day rescission period, how-
ever, they moved to amend their complaint in a manner aimed (at
least in part) at avoiding arbitration. The motion sought to add a
claim for negligent entrustment against Nixon & Nixon, Inc.,
based on an allegation that the vehicle driven by Ms. Nixon was
owned by that entity and had been entrusted to her despite know-
ing she had a history of strokes. In addition, the motion sought to
undo the election of arbitration for the claims against Ms. Nixon.
¶5 In support of their motion, the Zellers identified new in-
formation that they had uncovered after the close of the statutory
rescission period. That information came to light in part in initial
disclosures provided by Ms. Nixon under Utah Rule of Civil Pro-
cedure 26(a). Ms. Nixon’s disclosures indicated that she had had a
history of strokes, and also that the vehicle she was driving was
owned by Nixon & Nixon, thus providing a basis for the claim for
negligent entrustment. Another development came about around
the same time: Robert Zeller received a recommendation from a
surgeon that he undergo a neurosurgical procedure involving his
spine. That information prompted the Zellers to seek to avoid the
damages cap for claims in arbitration under section 321.
¶6 Ms. Nixon opposed the motion to amend. She also filed a
motion to compel arbitration. The district court granted the for-
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mer motion and denied the latter. In so doing, the court acknowl-
edged that the Zellers’ motion threatened to circumvent the elec-
tion and rescission terms of section 321. But it upheld the Zellers’
right to amend on the basis of the finding that the “motive to cir-
cumvent the rescission deadline” was not the “driving factor” for
the amendment. And it concluded that the Zellers “were justified”
in seeking the amendment because Ms. Nixon’s initial disclosures
had been “untimely” and she would not be “substantially preju-
diced” by the amendment.
¶7 In denying the motion to compel arbitration, the court
found no tension between Utah Code section 31A-22-321 and
Utah Rule of Civil Procedure 15. Although the statute expressly
limits a plaintiff’s right to rescind the election of arbitration to a
90-day period, the court deemed that limitation not to extend to
claims asserted in an amended complaint. So the court found the
standards set forth in rule 15 to control. And because it found a
basis for an amendment under rule 15, the court denied the mo-
tion to compel arbitration—freeing the Zellers of the statutory
limitations on their claims against Ms. Nixon and also allowing
their claims to proceed against Nixon & Nixon.
¶8 This appeal followed. Ms. Nixon alleges two sets of errors
in the district court’s decision granting the motion to amend and
denying the motion to compel arbitration. First, Ms. Nixon chal-
lenges the decision to allow the Zellers to undo their election of
arbitration as to their claims against her. Second, she also chal-
lenges the decision to allow the Zellers to add claims against Nix-
on & Nixon. As to both sets of claims, Ms. Nixon relies on the
election and rescission terms of Utah Code section 31A-22-321.
She asserts that the election of arbitration for “third party bodily
injury claims” under subsection 321(1) extends to all related
claims, and that the election becomes final if not rescinded within
90 days under subsection 321(4).
¶9 We reverse in part (as to the claims against Ms. Nixon) and
affirm in part (as to the claims against Nixon & Nixon). Unlike the
district court, we see evident conflict between section 321 and rule
15. The statute provides a single path for rescission of a plaintiff’s
election of arbitration. Under subsection 321(4), “[a] person who
has elected arbitration under this section may rescind the person’s
election” by one means only—by filing a notice of rescission
“within: (i) 90 days after the election to arbitrate; and (ii) no less
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Opinion of the Court
than 30 days before any scheduled arbitration hearing.” UTAH
CODE § 31A-22-321(4)(a). The express statement of this single path
for rescission is an evident exclusion of any other. See 2A NORMAN
J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND ON STATUTES AND
STATUTORY CONSTRUCTION § 47:23 (7th ed. 2007) (“When a statute
limits a thing to be done in a particular mode, it includes the nega-
tive of any other mode.” (internal quotation marks omitted)). If an
election of arbitration may be rescinded only by the filing of a no-
tice of rescission within 90 days, then such election may not be
undone by the subsequent filing of a motion to amend the com-
plaint. 1
¶10 The significance of the timing and finality of election and
rescission are evident on the face of section 321. A personal injury
case that proceeds by arbitration is fast-tracked. Discovery must
be “completed within 150 days after the date arbitration is elected
. . . or the date the answer is filed, whichever is longer.” UTAH
CODE § 31A-22-321(5)(b). Thereafter, the case is submitted to the
arbitrator, id. § 31A-22-321(6), unless it is first resolved by the
court on a dispositive motion, id. § 31A-22-321(9)(d). This fast
track makes it necessary to limit rescission. The 90-day rescission
period is of obvious importance to the proper functioning of the
statutory scheme.
¶11 We interpret the statute to foreclose the use of rule 15 to
circumvent the 90-day rescission period. If that period could be
circumvented by a simple motion to amend the complaint against
the same party named in the original pleading, the statutory re-
1 At oral argument, counsel for the Zellers sought to resist this
conclusion by citing a distinction between the mechanism of re-
scission under section 321 and the process of amendment under
rule 15—by noting that the former is automatic, while the latter
requires leave of court upon a showing that “justice so requires.”
See UTAH R. CIV. P. 15(a) (setting forth discretionary standard for
amending complaint after service of responsive pleading). Per-
haps that suggests that rule 15(a) is not a complete end-run
around—or not a perfect substitute for—rescission under section
321. But that is insufficient. Statutory rescission is the only availa-
ble mechanism for undoing an election of arbitration under sec-
tion 321. Rule 15 is not a viable mechanism for a second bite at the
apple.
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scission period would be significantly undermined. We reverse
the district court’s decision as to the Zellers’ claims against Ms.
Nixon on that basis. The Zellers elected arbitration as to their
“third party bodily injury claims” against Ms. Nixon under sub-
section 321(1), and they failed to file a notice of rescission within
90 days.
¶12 The Zellers’ motive for filing a motion to amend is irrele-
vant under the statute. They appear to have acquired a good faith
basis for second-guessing their original election of arbitration. The
information that came to light after the rescission period ended
would apparently justify a change of heart as to the wisdom of
proceeding in arbitration (and subjecting themselves to the statu-
tory cap on damages). But that is irrelevant under the statute. The
statutory timeframes are clear and straightforward. A claimant’s
election of arbitration stands after the rescission period runs—
whether or not the reason for the about-face is understandable.
¶13 That conclusion does not extend to the Zellers’ claims
against Nixon & Nixon, however. These are new claims against a
new party. Such claims could have been asserted in a new com-
plaint in a separate action. Our joinder rules allow such a claim to
be joined or consolidated with related claims in a pending case.
See, e.g., UTAH R. CIV. P. 18(a) (plaintiff “may” join “as many
claims either legal or equitable or both as he may have against an
opposing party”); UTAH R. CIV. P. 20(a) (“All persons may be
joined in one action as defendants” if causes of action arise “out of
the same transaction [or] occurrence” and there is “any question
of law or fact common to all of them.”). But those rules do not typ-
ically require such joinder. Krejci v. City of Saratoga Springs, 2013
UT 74, ¶ 15, 322 P.3d 662 (“[T]he joinder decision is generally
permissive. Parties are generally free to litigate in a piecemeal
fashion if they so choose[,] [absent] a motion for joinder of a nec-
essary party. . . .” (citation omitted)). And because the Zellers’
claims against Nixon & Nixon could have been filed as a new
complaint in an entirely separate case, we see no basis for deem-
ing them to be encompassed within the election of arbitration as
to their claims against Ms. Nixon.
¶14 Ms. Nixon claims to find such a basis in the terms of sub-
section 321(1). Because that provision states that “[a] person in-
jured as a result of a motor vehicle accident may elect to submit all
third party bodily injury claims to arbitration,” UTAH CODE § 31A-
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ZELLER v. NIXON
Opinion of the Court
22-321(1) (emphasis added), Ms. Nixon asserts that all of the
Zellers’ claims arising out of the automobile accident in question
are encompassed within the election of arbitration as to the claims
against her. [AB. 12] We read the statute differently. We view it as
permissive—as broadening the plaintiff’s right to press in arbitra-
tion all claims amounting to “third party bodily injury claims.”
¶15 Nothing in the terms or structure of this provision suggests
the further implication advanced by Ms. Nixon—of extending an
election of arbitration for claims asserted against one defendant to
sweep in related claims that could later be asserted against a se-
cond defendant. The statutory permission to seek arbitration for
“all” bodily injury claims is not a requirement to encompass any
related claims once arbitration is elected as to one defendant; it is
simply an indication that the statute does not limit the types of
bodily injury claims that may be arbitrated. And, given the
longstanding right of a plaintiff to assert separate claims against
multiple defendants separately, see supra ¶ 13, we construe the
election of arbitration in section 321 to be limited to the defend-
ant(s) named in the complaint at the time the election is made.
¶16 We affirm the district court’s decision as to the Zellers’
claim against Nixon & Nixon on that basis. Nixon & Nixon was
not a named defendant at the time of the Zellers’ initial election of
arbitration. The Zellers’ earlier election of arbitration as to their
claim against Ms. Nixon accordingly did not encompass their sub-
sequent claim against the corporation. For that reason there was
no error in allowing the claims against Nixon & Nixon to proceed
in regular litigation outside of the arbitration process set forth in
section 321.
¶17 Nor was there error in allowing such claims to be added as
an amendment to the existing complaint. Perhaps in some arbitra-
tion proceedings, the court is divested of jurisdiction while arbi-
tration is pending. But that is not the case for arbitration under
section 321. As noted above, the district court retains jurisdiction
during discovery and even for dispositive motions. UTAH CODE
§ 31A-22-321(9)(c), (d). So when this amendment was sought, the
district court still had jurisdiction, and thus a basis for allowing
the Nixon & Nixon claim to be added to this case (albeit outside
the arbitration election as to the claims against Ms. Nixon).
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¶18 For these reasons we reverse the district court as to the
Zellers’ claims against Ms. Nixon. Those claims are irretrievably
subject to arbitration given the Zellers’ failure to rescind their elec-
tion of arbitration within 90 days. And we affirm the district court
as to the Zellers’ claims against Nixon & Nixon, albeit on a
ground different from that identified below.
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