Helf v. Chevron U.S.A. Inc. ( 2015 )


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  •                 This opinion is subjec1t to revision before final
    publication in the Pacific Reporter
    
    2015 UT 81
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    JENNA R. HELF,
    Appellant,
    v.
    CHEVRON U.S.A. INC,
    Appellee.
    No. 20130700
    Filed September 4, 2015
    Third District, Salt Lake
    The Honorable Anthony B. Quinn
    No. 030901338
    Attorneys:
    Troy L. Booher, Clemens A. Landau, Noella A. Sudbury,
    Salt Lake City,
    Edward P. Moriarity, Bradley L. Booke, Shandar S. Badaruddin,
    Missoula MT, for appellant
    John A. Anderson, Jill M. Pohlman, Jason W. Crowell,
    Timothy M. Considine, Salt Lake City, for appellee
    JUSTICE DURHAM authored the opinion of the Court in which
    CHIEF JUSTICE DURRANT, JUSTICE PARRISH, and JUDGE TOOMEY joined.
    JUSTICE LEE filed a dissenting opinion.
    Having recused himself, JUSTICE HIMONAS does not participate
    herein; COURT OF APPEALS JUDGE KATE A. TOOMEY sat.
    JUSTICE DURHAM, opinion of the Court:
    INTRODUCTION
    ¶1     Jenna Helf worked at an oil refinery operated by Chevron
    U.S.A. Inc. Her supervisor instructed her to add sulfuric acid to an
    open-air pit containing waste products from the refinery and she
    was injured by a poisonous gas produced by the resulting chemical
    reaction. Ms. Helf obtained workers‘ compensation benefits for her
    injuries. She then sued Chevron, alleging it was liable for an
    HELF v. CHEVRON
    Opinion of the Court
    intentional tort because her supervisors knew that she would be
    injured when her immediate supervisor instructed her to add
    sulfuric acid to the pit.
    ¶2    Chevron moved for summary judgment, arguing that
    (1) Ms. Helf had not produced evidence that Chevron‘s managers
    knew or expected that Helf would be injured when her supervisor
    told her to add sulfuric acid to the pit and (2) Ms. Helf could not
    prevail as a matter of law because her election to obtain workers‘
    compensation benefits for her injury barred her from seeking a tort
    remedy. The district court concluded that the election of remedies
    doctrine did not bar her suit. But the court agreed with Chevron that
    Ms. Helf failed to produce evidence that would support a conclusion
    that one of Chevron‘s mangers has the requisite knowledge or intent
    to support an intentional tort claim. The district court therefore
    granted summary judgment.
    ¶3     Ms. Helf now appeals, arguing that summary judgment
    was not appropriate. Chevron also purports to cross-appeal from the
    district court‘s ruling that the election of remedies doctrine does not
    bar Ms. Helf‘s tort claim.
    ¶4     We hold that the district court erred by granting summary
    judgment. Ms. Helf produced evidence that when a worker added
    sulfuric acid to the pit earlier that same day, a chemical reaction
    produced a poisonous gas that triggered emergency alarms located
    150 feet from the pit and made workers in other areas of the refinery
    sick. There is a dispute of material fact precluding summary
    judgment because a reasonable jury could conclude that at least one
    of Chevron‘s managers knew that Ms. Helf would be injured when
    her supervisor instructed her to initiate this same process.
    ¶5    We also hold that the district court correctly ruled that the
    election of remedies doctrine does not bar her lawsuit. We agree
    with other courts that have held that workers are not required to
    choose between accepting workers‘ compensation benefits and an
    intentional tort claim.
    ¶6     We therefore reverse the district court‘s summary
    judgment ruling and remand for further proceedings consistent with
    this opinion.
    BACKGROUND
    ¶7     Chevron operates an oil refinery near Salt Lake City. The
    refinery contains a concrete-lined, open-air pit that is used to process
    various liquid and solid waste products from the refinery. One of the
    liquid waste products collected in the pit is mildly acidic steam
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    condensate from the refining process, which continuously flows into
    the pit. Before the pit is emptied, workers ensure that the pH level of
    the contents of the pit falls within an acceptable range. If the pH
    level of the pit is too high, workers add sulfuric acid to the pit by
    opening a valve. To mix the sulfuric acid with the contents of the pit,
    workers open another valve that forces compressed air below the
    surface and roils the pit. This process lowers the pH level of the
    contents of the pit and is called ―neutralizing the pit‖ by refinery
    workers. Once the pH level is acceptable, the contents of the pit are
    then pumped into anther storage facility for further processing.
    ¶8     In December 1998, managers debated how to dispose of
    high-pH sludge that had accumulated in one of the tanks used by the
    refinery. They ultimately decided to transfer the caustic sludge to the
    open-air pit and lower the pH level by adding sulfuric acid. Some
    managers, however, expressed doubts as to whether this plan was
    appropriate.
    ¶9     In January 1999, Chevron managers put their plan into
    effect. Neither the pit operator, who had five years of experience, nor
    the day-shift supervisor, who had worked at the refinery for a much
    longer period of time, had ever observed the pit being used to
    process that type of caustic sludge. When the pit operator and the
    day-shift supervisor found out about the plan to process the sludge
    in the pit, both of them thought that it was not a ―good idea.‖
    Despite their misgivings, someone directed workers to dump the
    sludge into the pit.
    ¶10 The day-shift supervisor instructed the pit operator to
    neutralize the contents of the pit. The operator partially opened the
    compressed-air valve in order to create a ―small air roll‖ in the pit,
    limiting the speed with which the chemicals in the pit would mix
    together. The pit operator then opened the valve that released
    sulfuric acid into the pit. Because of the operator‘s years of
    experience, he immediately moved away from the pit and stood
    upwind in order to avoid breathing fumes caused by the
    neutralization process. He had also learned from experience to hold
    his breath when approaching the pit to turn off the sulfuric acid
    valve in order to avoid breathing toxic fumes.
    ¶11 The sulfuric acid interacted with sulfides contained in the
    sludge to create a cloud of hydrogen sulfide gas. Hydrogen sulfide is
    heavier than air and highly toxic. It causes illness, damage to internal
    organs, convulsions, coma, or death, depending on the level of
    exposure. The hydrogen sulfide gas traveled downwind and
    triggered an emergency alarm when it reached sensors designed to
    detect the gas located about 150 feet from the pit. Due to the alarm,
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    HELF v. CHEVRON
    Opinion of the Court
    the day-shift supervisor directed the pit operator to stop the flow of
    sulfuric acid into the pit.
    ¶12 The hydrogen sulfide gas drifted downwind towards
    other sections of the refinery. Workers throughout the refinery
    complained of the ―rotten-egg‖ smell associated with the gas.
    Several workers also became ill, complaining of headaches,
    dizziness, and nausea—symptoms associated with lower-level
    exposure to hydrogen sulfide. At least one employee who worked in
    the administration building, which was located over 1,000 feet from
    the open-air pit, got sick. Chevron managers evacuated the
    administration building and sent the employees home for the day.
    ¶13 Chevron managers knew that the hydrogen sulfide release
    was caused by adding sulfuric acid to the contents of the open-air
    pit. The managers concluded that the neutralization process should
    cease until they had completed an evaluation of the situation. By the
    end of the day shift, the evaluation had not been completed. But
    because the pit could not be emptied and liquid condensate from the
    refining process continued to flow into the pit throughout the day, it
    was almost overflowing when the night-shift began.
    ¶14 The day-shift supervisor met with the night-shift
    supervisor prior to the shift change. He informed the night-shift
    supervisor of the events that had transpired because of the
    neutralization process in the open-air pit, including the fact that
    alarms had sounded and that workers in the refinery became ill. The
    day-shift supervisor expressed concern about adding additional
    sulfuric acid to the pit during the night shift. He testified that the
    hydrogen sulfide release was a dangerous event and that the night-
    shift supervisor ―should have had a clear expectation not to
    continue‖ the neutralization process.
    ¶15 During the shift change, the day-shift pit operator also told
    the night-shift pit operator, Ms. Helf, about the events that had
    transpired that day. He told Ms. Helf to call the night-shift
    supervisor before she did any work on the pit to make sure that it
    was authorized. Ms. Helf followed this advice and called the night-
    shift supervisor to inquire whether she should neutralize the
    contents of the pit. He told her to neutralize the pit. Ms. Helf asked
    again whether the night-shift manager was sure that she should add
    sulfuric acid to the pit and he confirmed that she should do so.
    ¶16 Pursuant to this instruction, Ms. Helf opened both the
    compressed air valve and the valve that released sulfuric acid in the
    pit. As had happened earlier during the day shift, the sulfuric acid
    reacted violently with the sludge that had been dumped in the pit,
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    Opinion of the Court
    releasing hydrogen sulfide gas. But unlike the experienced day-shift
    operator who stood upwind from the pit, Ms. Helf, who was a new
    three-month trainee, did not take such a precaution. Instead,
    Ms. Helf walked along the perimeter of the pit from the south side to
    the east side. While she was walking along the eastern edge of the
    pit, she was ―hit‖ by a cloud of toxic vapors from the pit that
    enveloped her. Ms. Helf‘s throat and chest seized and she fell to her
    knees. She then crawled to the north side of the pit and vomited. She
    believes that she lost consciousness at some point, but her memories
    of her exposure to the concentrated cloud of hydrogen sulfide gas
    are hazy and indistinct. As Ms. Helf was recovering, she received a
    radio call from the central control office instructing her to turn off
    the compressed air roiling the pit because hydrogen sulfide gas was
    making workers in other areas of the refinery sick, and she complied.
    ¶17 Ms. Helf suffered permanent injuries caused by her
    exposure to concentrated hydrogen sulfide gas. She has a seizure
    disorder and problems with memory and coordination. Ms. Helf can
    no longer drive and activities such as cooking and taking a bath can
    be dangerous because of the potential for a seizure.
    ¶18 Ms. Helf applied for and received workers‘ compensation
    benefits for her injuries. Ms. Helf then filed a lawsuit against
    Chevron in January 2003. Chevron moved to dismiss the lawsuit,
    arguing that the exclusive remedy provision of the Workers‘
    Compensation Act barred the suit. See UTAH CODE § 34A-2-105(1).
    The district court dismissed the lawsuit and Ms. Helf appealed.
    ¶19 This court reversed the district court. We held that the
    exclusive remedy provision does not bar a civil lawsuit where the
    employer knew or expected that a worker would be injured. Helf v.
    Chevron U.S.A., Inc., 
    2009 UT 11
    , ¶ 43, 
    203 P.3d 962
    . We further
    concluded that because Ms. Helf‘s complaint alleged that Chevron‘s
    managers knew that prior efforts to neutralize the contents of the pit
    had resulted in poisonous gases that set off safety alarms and caused
    workers far away from the pit to become ill, a reasonable jury could
    conclude that the managers knew or expected that Ms. Helf would
    be injured when she reinitiated the same process. 
    Id.
     ¶¶ 44–46.
    ¶20 After the case was remanded and the parties had
    conducted discovery, Chevron moved for summary judgment,
    arguing that (1) Ms. Helf had not produced evidence that Chevron‘s
    managers knew or expected that Helf would be injured and that
    (2) the lawsuit was barred by the doctrine of election of remedies
    because Ms. Helf had chosen to accept workers‘ compensation
    benefits for her injuries. The district court rejected Chevron‘s election
    of remedies argument, but it granted summary judgment in favor of
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    HELF v. CHEVRON
    Opinion of the Court
    Chevron because it found that Ms. Helf had failed to produce
    evidence that would create a dispute of material fact as to whether a
    Chevron manager knew or expected that Ms. Helf would be injured
    when she neutralized the pit.
    ¶21 Ms. Helf appealed from the summary judgment against
    her. Chevron also filed a notice of appeal in which it purported to
    cross-appeal from the portion of the judgment that rejected its
    election of remedies argument. In the briefing on the appeal and
    cross-appeal the parties have raised two main issues: (1) whether
    there was a dispute of material fact that would preclude summary
    judgment and (2) whether the election of remedies doctrine bars
    Ms. Helf‘s lawsuit
    ANALYSIS
    I. SUMMARY JUDGMENT
    ¶22 Workers may not sue their employers for injuries caused
    by on-the-job accidents. The exclusive remedy for work-related
    accidents is the workers‘ compensation scheme, which was created
    by the legislature to distribute benefits to injured workers. UTAH
    CODE § 34A-2-105(1). A worker, however, may sue an employer for
    injuries caused by an intentional tort. Helf v. Chevron U.S.A., Inc.,
    
    2009 UT 11
    , ¶ 18, 
    203 P.3d 962
    .
    ¶23 In order to prevail in a civil lawsuit, therefore, a worker
    must prove that an agent of the employer intentionally caused the
    worker‘s injury. In other words, the worker must show that the
    employer‘s agent had ―a specific mental state in which the [agent]
    knew or expected that injury would be the consequence of his
    action.‖ Id. ¶ 43. This mental state can be proven either (1) with
    evidence that the agent ―desired the consequences of his actions‖ or
    (2) with evidence that the agent acted with the knowledge that ―the
    consequences were virtually certain to result‖ Id.
    ¶24 Ms. Helf does not allege that anyone at Chevron
    maliciously desired to injure her. Instead, she alleges that her
    supervisors knew that an injury was virtually certain to occur when
    they either directed or allowed her to neutralize the contents of the
    open-air pit. Chevron asserted in its motion for summary judgment
    that Ms. Helf had not produced evidence creating a dispute of fact as
    to whether a Chevron manager acted with this knowledge.
    ¶25 In order to decide whether the district court erred when it
    agreed with Chevron and granted summary judgment in its favor,
    we must answer three questions. First, we must decide precisely
    who at Chevron must have the required mental state in order for
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    Opinion of the Court
    Ms. Helf to prevail. Second, we must evaluate whether the district
    court erred when it excluded evidence in ruling on the summary
    judgment motion. And third, we must determine whether the
    district court correctly decided that Ms. Helf failed to produce
    admissible evidence that could support the conclusion that one of
    her supervisors had the mental state required for an intentional tort
    claim.
    A. At Least One Individual with the Authority to Direct Ms. Helf’s
    Actions Must Have the Requisite Mental State in Order for
    Ms. Helf to Prevail
    ¶26 Ms. Helf urged the district court to aggregate the
    knowledge of various Chevron employees to determine whether the
    requisite knowledge to support an intentional tort claim could be
    imputed to Chevron. The court rejected this collective knowledge
    theory and concluded that the expectation that an injury was
    virtually certain to occur had to be found in the mind of at least one
    individual. The district court further concluded that only the
    knowledge of the night-shift supervisor was relevant in this case
    because he was the Chevron manager who instructed Ms. Helf to
    perform the neutralization process. These two conclusions are legal
    determinations that we review de novo. See Daniels v. Gamma W.
    Brachytherapy, LLC, 
    2009 UT 66
    , ¶ 46, 
    221 P.3d 256
     (interpretation of
    the common law reviewed for correctness).
    ¶27 We agree with the district court‘s first conclusion that
    Ms. Helf must produce evidence that at least one individual with the
    authority to direct her actions had the required knowledge or
    expectation that she would be injured. Although we have never
    addressed this question, other courts have held that the collective
    knowledge of multiple employees cannot ―establish the state of
    mind requisite to the commission of an intentional tort of a
    corporation.‖ Adams v. Nat’l Bank of Detroit, 
    508 N.W.2d 464
    , 469, 480
    (Mich. 1993). Put simply, ―intent to commit tortious acts cannot be
    imputed to a corporation on the basis of disconnected facts
    possessed by various employees or agents of that corporation, where
    there is no evidence that any employee possessed the requisite state
    of mind.‖ Id. at 480; accord Woodmont, Inc. v. Daniels, 
    274 F.2d 132
    , 137
    (10th Cir. 1959) (―[W]hile in some cases, a corporation may be held
    constructively responsible for the composite knowledge of all of its
    agents . . . we are unwilling to apply the rule to fix liability where, as
    here, intent is an essential ingredient of tort liability as for deceit.‖);
    see also Chaney v. Dreyfus Serv. Corp., 
    595 F.3d 219
    , 241 (5th Cir. 2010)
    (―[A]s a general rule, where an essentially subjective state of mind is
    an element of a cause of action we have declined to allow this
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    HELF v. CHEVRON
    Opinion of the Court
    element to be met by a corporation‘s collective knowledge, instead
    requiring that the state of mind actually exist in at least one
    individual . . . .‖ (internal quotation marks omitted)); First Equity
    Corp. of Fla. v. Standard & Poor’s Corp., 
    690 F. Supp. 256
    , 259–60
    (S.D.N.Y. 1988) (the collective knowledge of various employees may
    not be used to satisfy the scienter requirement of a fraud claim
    against a corporation).
    ¶28 Although it may be possible that the collective knowledge
    of the agents of a corporation may be relevant in other legal contexts,
    see RESTATEMENT (THIRD) OF AGENCY § 5.03 cmt. c (2006), we agree
    that for the purposes of proving that a corporation is liable for an
    intentional tort, a plaintiff must prove that at least one agent of the
    corporation had all of the requisite knowledge to support the claim.
    Inventing a corporate consciousness with the capacity to possess the
    state of mind necessary for an intentional tort is inconsistent with the
    principles of tort law. See Adams, 508 N.W.2d at 480. Therefore, the
    district court correctly concluded that at least one Chevron agent
    must have all of the knowledge necessary to support liability under
    an intentional tort theory.
    ¶29 The district court erred, however, in concluding that only
    the state of mind of Ms. Helf‘s direct supervisor could be relevant. If
    a more senior Chevron manger with the authority to direct
    Ms. Helf‘s actions knew or expected that workers would be injured
    during the neutralization process and either instructed the night-
    supervisor to order a worker to neutralize the pit or knew that the
    routine neutralization process would occur absent the manager‘s
    order to halt the process, then the knowledge of the more senior
    manager would be sufficient to support an intentional tort claim.
    Employers are not shielded from liability if a manager with the
    knowledge that an injury is virtually certain to occur simply orders
    another manager without this knowledge to instruct a worker to
    perform the dangerous task. Furthermore, if a manager knows or
    expects that a routine task will result in injury because of changed
    conditions, an employer does not avoid liability if that manager
    passively permits the worker‘s direct supervisor to instruct the
    worker to perform the task. Otherwise, employers would be
    encouraged to compartmentalize knowledge about dangerous
    conditions in order to insulate themselves from liability in situations
    where a more senior supervisor knows that an injury is virtually
    certain to occur but the direct supervisor does not have this
    knowledge.
    ¶30 Ms. Helf argued below and before this court that the
    knowledge of two of Chevron‘s senior managers was also relevant to
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    the question of Chevron‘s liability. Ms. Helf produced evidence that
    both the area supervisor of the portion of the refinery where she
    worked and the emergency response team coordinator knew that
    reinitiating the neutralization process would be dangerous. The
    district court erred by not considering whether Ms. Helf produced
    sufficient evidence that either of these individuals (1) knew that an
    injury was virtually certain to occur if a worker neutralized the pit,
    (2) had the authority to halt the neutralization process or direct the
    pit operator‘s actions, and (3) either ordered the routine
    neutralization process to continue or knew that a worker would
    neutralize the pit during the night shift and failed to stop it or
    require additional safety precautions.
    B. The Trial Court Erred When It Excluded Deposition Testimony
    ¶31 Before determining whether Ms. Helf should survive
    summary judgment because she produced evidence creating a
    dispute of material fact as to the elements of her claim against
    Chevron, we must first decide what evidence should have been
    considered by the district court. Specifically, we must determine
    whether the district court properly excluded portions of the
    deposition testimony of a union safety representative who
    investigated the accident.
    ¶32 During discovery, a union safety representative for the
    refinery gave deposition testimony about his investigation of the
    accident. The safety representative testified that he interviewed the
    day-shift supervisor and that the day-shift supervisor said that he
    told the night-shift supervisor about the hydrogen sulfide release,
    including the fact that some of the workers at the refinery got sick:
    [The day-shift supervisor] told [the night-shift
    supervisor] what they had tried, what had happened,
    the alarms that went off, people that got sick . . . . He
    just made him aware of what happened that day, that
    they got so many complaints of the odor, people
    getting sick and the alarms, that they shut it down.
    This testimony is significant because it appears to be the only direct
    evidence that the day-shift supervisor informed the night-shift
    supervisor that the neutralization process made workers ill.
    ¶33 Chevron made no objection to this testimony during the
    deposition. But it later filed a written motion to strike this testimony,
    arguing that it was hearsay and that the declarant lacked personal
    knowledge. At the summary judgment hearing, the district court
    rejected Chevron‘s hearsay and lack of personal knowledge
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    HELF v. CHEVRON
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    arguments for excluding the testimony.1 But the court sua sponte
    excluded the testimony on the grounds that it lacked foundation and
    was nonresponsive to the question asked. Based upon its conclusion
    that Ms. Helf had not produced admissible evidence that the night-
    shift supervisor knew that workers had been sickened by the
    neutralization process during the day shift, the district court granted
    the motion for summary judgment.
    ¶34 Ms. Helf argues on appeal that the district court erred by
    excluding this testimony because Chevron waived any foundation or
    nonresponsiveness objection by failing to raise it during the
    deposition. Two provisions of the Utah Rules of Civil Procedure
    govern the waiver of objections to deposition testimony not raised
    during a deposition. We review the district court‘s interpretation of
    these rules de novo. See Pete v. Youngblood, 
    2006 UT App 303
    , ¶ 7, 
    141 P.3d 629
    .
    ¶35 First, rule 32(c)(3)(A) provides that ―[o]bjections to . . . the
    competency, relevancy, or materiality of testimony are not waived
    by failure to make them before or during the taking of the
    deposition, unless the ground of the objection is one which might
    have been obviated or removed if presented at that time.‖ This rule
    applies to the foundation objection since it is an objection to the
    competency of the safety representative‘s testimony. A foundation
    objection is one of the types of objections to competency that is
    waived if not raised at the deposition because this objection can be
    ―obviated or removed‖ by laying a foundation for the deponent‘s
    testimony. See Jordan v. Medley, 
    711 F.2d 211
    , 218 (D.C. Cir. 1983)
    (interpreting the nearly identical federal rule and holding that
    ―[w]hat the exception obviously envisions is a situation in which a
    timely objection (e.g., on the ground of failure to lay an adequate
    foundation) could have enabled the problem to be remedied‖
    (citation omitted)); Strelecki v. Firemans Ins. Co. of Newark, 
    276 N.W.2d 794
    , 799 (Wis. 1979) (interpreting the nearly identical Wisconsin rule
    and holding that ―objections which might be ‗obviated or removed‘
    . . . . include objections based on lack of foundation testimony‖).
    ¶36 Second, rule 32(c)(3)(B) states that ―[e]rrors and
    irregularities occurring at the oral examination . . . in the form of the
    questions or answers . . . and errors of any kind which might be
    obviated, removed, or cured if promptly presented are waived
    1 Chevron has not challenged the district court‘s ruling rejecting
    its hearsay and lack of personal knowledge objections to the
    deposition testimony. Therefore this ruling is not before us in this
    appeal.
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    unless seasonable objection thereto is made at the taking of the
    deposition.‖ (Emphasis added). This provision applies to the district
    court‘s sua sponte objection that the deposition testimony was
    nonresponsive to the question asked.
    ¶37 Thus the plain language of rules 32(c)(3)(A) and (B)
    dictates that the foundation and nonresponsiveness objections raised
    by the district court were waived because the objections could have
    been cured during the deposition. The district court apparently
    recognized the waiver problem, but justified its sua sponte exclusion
    of the testimony because a Chevron attorney asked the question that
    elicited the allegedly objectionable testimony: ―Now, if it was not
    [Chevron‘s attorney] that was asking the questions and it would be –
    – if it were the other side and it was his obligation to object, those
    objections may well have been waived by the failure to make them at
    the deposition.‖ The court, therefore, ruled that the foundation and
    nonresponsiveness objections were not waived because the party
    asking a deposition question has no obligation to raise an objection
    to a deponent‘s answer in order to avoid waiver of the objection.
    ¶38 The district court‘s ruling that the waiver rule did not
    apply was in error. Nothing in rule 32(c)(3)(A) or (B) indicates that
    the party posing a deposition question has no obligation to object to
    the deponent‘s answer in order to avoid waiver. Both rules speak in
    general terms and require waiver of certain types of objections if
    neither party asserts them during the deposition.
    ¶39 Caselaw examining the nearly identical federal rule
    indicates that the waiver rule applies regardless of which party is
    questioning the deponent when an objectionable answer is given. In
    Kirschner v. Broadhead, an attorney for the plaintiff deposed a
    defendant, who gave objectionable answers that were unresponsive
    to the questions asked. See 
    671 F.2d 1034
    , 1038 (7th Cir. 1982). Even
    though the plaintiff‘s attorney did not object to this testimony at the
    deposition, the plaintiff successfully moved for the exclusion of the
    deposition testimony at a subsequent trial where the deponent was
    unavailable to testify. 
    Id.
     The Seventh Circuit held that the exclusion
    of the deposition testimony was erroneous because any objection
    was waived when the attorney questioning the deponent neglected
    to object to the deponent‘s answers during the deposition on the
    ground that the answers were nonresponsive. 
    Id.
     The court reasoned
    that if the plaintiff‘s attorney, who was questioning the deponent,
    had objected to the form of the deponent‘s responses, the deponent
    could have ―conformed his answers to the questions.‖ 
    Id.
     ―The
    limited nature of such answers, in turn, would have alerted
    [defendants‘] counsel to develop omitted portions of the story on
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    Opinion of the Court
    cross-examination. Because [plaintiff‘s counsel] did not object, [the
    defendants] very properly considered [the deponent‘s] in depth
    narrative sufficient for their purposes and thus dispensed with
    questions of their own.‖ 
    Id.
    ¶40 The same logic applies to this case. Had Chevron objected
    to the safety representative‘s answer on the grounds raised by the
    district court (lack of foundation and nonresponsive to the question
    asked), Ms. Helf would have been alerted to the potential need to
    cure the objection by laying a foundation and asking appropriate
    questions to elicit the same testimony when it was her attorney‘s
    turn to cross-examine the witness. As noted above, both of these
    objections are the type of objections that can be cured if they had
    been presented at the deposition. Supra ¶¶ 35–36. But because
    Chevron did not object, Ms. Helf could justifiably rely on the rule
    that the safety representative‘s deposition testimony could not be
    excluded based upon a later objection that could have been
    remedied had it been raised during the deposition.2 If rules
    32(c)(3)(A) and (B) were not applied where the party asking the
    deposition questions fails to object to the answers, ―counsel would
    be encouraged to wait . . . before making any objections, with the
    hope that the testimony, although relevant, would be excluded
    altogether.‖ Kirschner, 
    671 F.2d at 1038
     (internal quotation marks
    omitted). This is precisely the unjust result the waiver rule is
    designed to prevent.
    ¶41 In its appellate briefing, Chevron does not argue that the
    trial court‘s interpretation of rule 32(c)(3)(A) and (B) was correct.
    Instead, it argues that we should not review the district court‘s sua
    sponte ruling excluding the deposition testimony because Ms. Helf
    did not object to the ruling after the court announced it during the
    summary judgment hearing. The preservation rule, however, does
    not counsel against appellate review of the district court‘s order.
    ¶42 ―An issue is preserved for appeal when it has been
    presented to the district court in such a way that the court has an
    2 If the waiver rule did not apply where the attorney asking the
    deposition questions had cause to object to the deponent‘s answers
    but neglects to do so, the attorney for the opposing party would
    have to replicate the all of the deponent‘s answers on cross-
    examination or risk the exclusion of the deponent‘s testimony at a
    later date on an objection that was curable, but not raised during the
    deposition. Failing to apply rule 32(c)(3)(A) and (B) in this scenario
    would therefore lead to uncertainty, longer depositions, and
    increased litigation costs.
    12
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    opportunity to rule on [it].‖ Patterson v. Patterson, 
    2011 UT 68
    , ¶ 12,
    
    266 P.3d 828
     (alteration in original) (internal quotation marks
    omitted). The fundamental purpose of the preservation rule is to
    ensure that the district court had a chance to rule on an issue before
    an appellate court will address it. This rule promotes both judicial
    economy and fairness to the parties. 
    Id.
     ¶¶ 15–16. Where a district
    court itself raises and then resolves an issue sua sponte, it obviously
    had an opportunity to rule on the issue. This satisfies the basic
    purpose of the preservation rule.3
    ¶43 Rule 103(a) of the Utah Rules of Evidence confirm that an
    objection to the district court‘s ruling excluding evidence was not
    required to preserve the issue for appeal. Rule 103(a) describes the
    requirements for preserving a claim of error to an evidentiary ruling,
    listing separate requirements for a ruling admitting evidence and a
    ruling excluding evidence. A claim of error regarding a ruling
    admitting evidence is preserved if a party (1) ―timely objects or
    moves to strike‖ and (2) ―states the specific ground, unless it was
    apparent from the context.‖ UTAH R. EVID. 103(a)(1). In order to
    preserve a claim of error regarding a ruling excluding evidence,
    however, a party need only ―inform[] the court of [the substance of
    the excluded evidence] by an offer of proof, unless the substance was
    apparent from the context.‖ UTAH R. EVID. 103(a)(2). No objection is
    needed to review a claimed error in excluding evidence. This
    comports with the underlying principles of the preservation rule
    because in order to exclude evidence, a district court must either
    sustain an objection raised by a party or raise an objection to the
    admission of the evidence sua sponte. In either situation the court
    must consider and rule on the issue.
    ¶44 Thus, because Ms. Helf seeks review of a ruling excluding
    evidence, and the substance of this evidence is apparent on the
    record, this issue is preserved for review. In reviewing this
    evidentiary ruling, we conclude that the district court erred by
    excluding a portion of the deposition testimony of the union safety
    representative because the objections raised by the court had been
    waived. We therefore consider this deposition testimony, including
    the assertion that the night-shift supervisor knew that the
    3 Indeed, we have noted that where one party raises an issue and
    induces the trial court to rule on it, the opposing party need not raise
    an objection in order to preserve the issue for appeal. Gressman v.
    State, 
    2013 UT 63
    , ¶ 45, 
    323 P.3d 998
    . There is no principled reason
    why there should be a different result where the court raises the
    issue of its own accord.
    13
    HELF v. CHEVRON
    Opinion of the Court
    neutralization process made workers ill, in considering whether
    summary judgment was appropriate.
    C. There Is a Dispute of Material Fact as to Whether the Night-Shift
    Supervisor Knew or Expected that Ms. Helf Would Be Injured
    ¶45 Having resolved both the legal issue of who at Chevron
    must have the requisite state of mind to support an intentional tort
    claim and the evidentiary question of what proof of this state of
    mind was properly before the district court, we now turn to the
    question of whether summary judgment was proper here.
    ¶46 Summary judgment is appropriate where ―there is no
    genuine issue as to any material fact and . . . the moving party is
    entitled to a judgment as a matter of law.‖ UTAH R. CIV. P. 56(c). In
    determining whether there is a genuine issue of material fact, courts
    must ―view the facts and all reasonable inferences in the light most
    favorable to the nonmoving party.‖ Bodell Const. Co. v. Robbins, 
    2009 UT 52
    , ¶ 16, 
    215 P.3d 933
    . ―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.‖ Johnson v. Hermes Assocs., Ltd.,
    
    2005 UT 82
    , ¶ 12, 
    128 P.3d 1151
    .
    ¶47 The district court granted summary judgment in favor of
    Chevron based upon its determination that Ms. Helf failed to
    produce evidence that would create a dispute of material fact as to
    whether the night-shift supervisor knew that an injury was virtually
    certain to occur when he ordered her to neutralize the pit. Thus the
    key issue in the summary judgment proceeding was the night-shift
    supervisor‘s knowledge regarding the consequences of his order.4
    Absent an admission from the night-shift supervisor that he knew an
    injury would result—a concession he did not make in his deposition
    and, indeed, a concession we expect to be rare in these types of
    cases—this knowledge can only be inferred from the surrounding
    circumstances.5 The question here, therefore, is this: viewing the
    4 As noted above, Ms. Helf also argued that Chevron‘s liability
    could also be based on the knowledge of two other managers. Supra
    ¶ 30. Because the proceedings in the district court and the briefing
    before this court focused on the evidence related to the night-shift
    supervisor‘s knowledge, we first examine the evidence of his
    knowledge.
    5 See State v. Lamm, 
    606 P.2d 229
    , 235 (Utah 1980) (Maughan, J.,
    dissenting) (―This Court has repeatedly recognized the basic concept
    that criminal intent is rarely susceptible to direct proof and usually
    must be inferred from the facts and circumstances of the incident.‖);
    14
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    evidence of the facts known by the night-shift supervisor in the light
    most favorable to Ms. Helf, could a reasonable jury infer that the
    supervisor also knew that an injury was virtually certain to result
    from his command to neutralize the pit?6
    ¶48 Taken in the light most favorable to Ms. Helf, the evidence
    and all reasonable inferences drawn from it would support a jury
    conclusion that the night-shift supervisor knew that adding sulfuric
    acid to the pit would release dangerous quantities of hydrogen
    sulfide gas. He was told that during the day shift the neutralization
    process had triggered sensors designed to detect dangerous levels of
    hydrogen sulfide gas that were located 150 feet from the pit and that
    emergency alarms had sounded. He was also told that hydrogen
    sulfide gas from the neutralization process caused workers in other
    areas of the refinery to become ill. The day-shift supervisor
    expressed his concern about adding sulfuric acid to the pit to the
    night-shift supervisor. The day-shift supervisor further testified that
    the hydrogen sulfide release was a dangerous event and that the
    night-shift supervisor ―should have had a clear expectation not to
    continue‖ the neutralization process.
    ¶49 Given this evidence of the night-shift supervisor‘s
    knowledge, a reasonable jury could infer that he also knew or
    expected that an injury would occur when he told Ms. Helf to
    neutralize the pit. The night-shift supervisor knew that the same
    Selvage v. J.J. Johnson & Assocs., 
    910 P.2d 1252
    , 1262 n.9 (Utah Ct. App.
    1996) (citing a case observing that ―intent can rarely be established
    directly, and therefore circumstantial evidence must be examined as
    to the circumstances surrounding the transactions in question‖);
    Alexander v. Bozeman Motors, Inc., 
    234 P.3d 880
    , 887 (Mont. 2010)
    (examining a worker‘s intentional tort claim against an employer
    and noting that ―[b]ecause it is seldom subject to direct proof, intent
    must be inferred‖ from surrounding circumstances (internal
    quotation marks omitted)).
    6  In order for the injury to be intentional, the night-shift
    supervisor did not have to anticipate the extent or exact nature of
    Ms. Helf‘s actual injury. ―As long as some sort of injury was
    intended or expected, the actual injury suffered is not accidental
    even if the actual injury differs in nature or degree from what might
    have been reasonably anticipated.‖ N.M. ex rel. Caleb v. Daniel E.,
    
    2008 UT 1
    , ¶ 12, 
    175 P.3d 566
    . So long as the supervisor knew that
    some ―nontrivial injury‖ was virtually certain to occur when he
    directed Ms. Helf to neutralize the pit, the resulting injury is
    intentional. See 
    id.
    15
    HELF v. CHEVRON
    Opinion of the Court
    neutralization process had caused emergency alarms to sound and
    made workers in other areas of the refinery to become sick during
    the day shift. A jury could conclude that since hydrogen sulfide gas
    triggered sensors located 150 feet from the pit and made distant
    workers ill, the night-shift supervisor knew that Ms. Helf, who was
    working right next to the pit, would be injured.
    ¶50 We indicated as much the last time this case appeared
    before us. We held in Helf that allegations in the complaint that the
    day-shift neutralization process had triggered safety alarms and
    caused workers in other areas of the refinery to become ill were
    sufficient to survive a motion to dismiss. 
    2009 UT 11
    , ¶¶ 44–46.
    These allegations ―could convince a reasonable jury that [Ms. Helf‘s]
    injuries were the expected result of re-initiating the neutralization
    process.‖ Id. ¶ 46. Because Ms. Helf produced evidence to
    substantiate these key allegations, we hold that Ms. Helf‘s lawsuit
    survives Chevron‘s motion for summary judgment.
    ¶51 Other courts have held that similar facts raised a jury
    question as to whether a worker‘s supervisor knew that an order
    would cause an injury, rejecting motions for summary judgment
    brought by the employer. Gulden v. Crown Zellerbach Corp., 
    890 F.2d 195
    , 197 (9th Cir. 1989) (reversing summary judgment on a worker‘s
    intentional tort claim where there was evidence that a supervisor
    ordered the worker‘s contact with a toxic substance); O’Brien v.
    Ottawa Silica Co., 
    656 F. Supp. 610
    , 611 (E.D. Mich. 1987) (refusing to
    grant summary judgment where the employer‘s doctors discovered
    evidence of respiratory disease but the employer did not inform the
    worker of this evidence or take precautions to avoid further
    inhalation of asbestos); Suarez v. Dickmont Plastics Corp., 
    639 A.2d 507
    , 512–13 (Conn. 1994) (reversing summary judgment where the
    worker was ordered to clean a machine without shutting it down);
    Kachadoorian v. Great Lakes Steel Corp., 
    424 N.W.2d 34
    , 36–37 (Mich.
    Ct. App. 1988) (reversing summary disposition where a supervisor
    ordered a worker to drive a machine under a vessel that frequently
    spilled molten steel); Kielwein v. Gulf Nuclear, Inc., 
    783 S.W.2d 746
    ,
    747–48 (Tex. App. 1990) (reversing summary judgment where a
    supervisor instructed a worker to decontaminate an area where
    highly radioactive isotopes had been spilled without safety
    equipment). In reversing summary judgment in a similar case
    involving an intentional tort claim brought by worker, the Ninth
    Circuit noted that ―[s]ummary judgment is particularly
    inappropriate where the inferences which the parties seek to have
    drawn deal with questions of motive, intent and subjective feelings
    and reactions.‖ Gulden, 
    890 F.2d at 197
     (internal quotation marks
    16
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    Opinion of the Court
    omitted). Given that the key dispute here is over the subjective
    knowledge of the night-shift supervisor, we are similarly reluctant to
    say that in our wisdom we have divined the only reasonable
    inference that a jury may draw from the available evidence. That
    question, at least under the facts of this case, is for the jury.
    ¶52 The district court, though, granted summary judgment in
    favor of Chevron mainly based upon the fact that the day-shift pit
    operator had not been injured when he neutralized the pit:
    I think it‘s significant that there‘s no indication that
    [the day-shift pit operator] was sick or injured, which I
    think that fact alone . . . has greater significance than
    either of the parties have pointed to, because if the
    standard is that a specific employee was going to be
    injured during a specific task, the fact that the very
    person that performed the task on the shift before did
    not get injured, it raises a question about whether that
    standard could be met under the circumstances of this
    case.
    But the absence of an injury to the worker that neutralized the pit
    prior to Ms. Helf does not mandate summary judgment in favor of
    Chevron for two reasons.
    ¶53 First, there is no evidence that the night-shift supervisor
    knew that the day-shift pit operator was not among the Chevron
    employees who became ill when the pit was neutralized during the
    day shift. The day-shift supervisor did not testify that he had
    conveyed this information to the night-shift supervisor. Nor is there
    any other direct evidence that the night-shift supervisor had this
    knowledge. The day-shift supervisor did testify, however, that he
    conveyed ―all significant and important information‖ to the night-
    shift supervisor. From this testimony, a jury could potentially infer
    that the night-shift supervisor had been informed about the absence
    of any injury to the day-shift pit operator. But in a summary
    judgment proceeding, courts must make all inferences in favor of the
    nonmoving party—in this case, Ms. Helf. Bodell Const., 
    2009 UT 52
    ,
    ¶ 16. Chevron, as the moving party, is not entitled to inferences in its
    favor when seeking summary judgment.
    ¶54 As we noted above, only the knowledge of the night-shift
    supervisor when he directed Ms. Helf to neutralize the pit is relevant
    to the question of whether he knew that Ms. Helf would be injured.
    Supra ¶ 26–28, 47. Because we may not assume that the night-shift
    supervisor knew that the day-shift pit operator was not injured by
    17
    HELF v. CHEVRON
    Opinion of the Court
    the neutralization process, this fact has no bearing on the question of
    whether summary judgment was appropriate in this case.
    ¶55 Second, even if the absence of an injury to the day-shift pit
    operator were relevant, this fact does not defeat summary judgment.
    If the night-shift supervisor knew that the day-shift pit operator had
    not been injured, a jury could infer that differences between the
    experienced day-shift pit operator and the recently hired Ms. Helf
    would still lead to the conclusion that the night-shift supervisor
    expected Ms. Helf would be injured when she neutralized the pit.
    ¶56 The day-shift pit operator had over five years of
    experience working at the refinery. Because of his years of
    experience, he knew to immediately move away from the pit and
    stand upwind while neutralizing the caustic sludge contained in the
    pit. He had also learned from experience to hold his breath when
    approaching the pit to turn off the sulfuric acid valve in order to
    avoid breathing toxic fumes. Ms. Helf, on the other hand, had only
    worked at the refinery for three months. A jury could conclude,
    therefore, that the night-shift operator knew that Ms. Helf lacked the
    experience required to know to take such precautions when he
    ordered her to neutralize the pit.
    ¶57 In summary, the evidence supports the conclusion that
    Chevron‘s decision to dump the caustic sludge into the open-air pit
    left the night-shift supervisor with an array of bad options. If the
    supervisor did nothing, liquid condensate from the refining process
    that continuously flows into the pit would have caused the pit to
    overflow. This could lead to environmental cleanup costs and
    potential regulatory action against Chevron. The supervisor also
    presumably could also have shut down the portion of the refinery
    that produced the liquid condensate to prevent the pit from
    overflowing. But the resulting loss of production would hurt
    Chevron‘s bottom line. The supervisor instead chose a third option:
    to conduct business as usual and instruct Ms. Helf to neutralize the
    pit so that it could be pumped out and the refining process could
    continue unabated. A jury could conclude that the supervisor chose
    this course of action in order to serve the economic interests of
    Chevron or to avoid a negative employment action against himself.
    A jury could further conclude that the night-supervisor made this
    decision with the knowledge that Ms. Helf would be injured in the
    process. See Helf, 
    2009 UT 11
    , ¶¶ 34–37 (employer motivated by
    profits may be liable if the employer expected an injury to result
    from a course of action).
    ¶58 We therefore conclude that summary judgment was
    inappropriate. There is a dispute of material fact as to whether the
    18
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    night-shift supervisor knew that Ms. Helf would be injured.
    Consequently, we need not consider whether Ms. Helf produced
    adequate evidence that one of the other Chevron managers had the
    requisite knowledge to sustain an intentional tort claim.
    II. ELECTION OF REMEDIES
    ¶59 Chevron argues in the alternative that even if Ms. Helf
    produced sufficient evidence to survive summary judgment, it was
    nevertheless entitled to judgment as a matter of law because
    Ms. Helf was bound by her election to receive the remedy of
    workers‘ compensation benefits for her injury. Chevron asserts in its
    briefing on the cross-appeal that the district court erred when it
    rejected this election of remedies argument and that we should
    affirm the summary judgment in its favor on this alternative ground.
    See Jensen ex rel. Jensen v. Cunningham, 
    2011 UT 17
    , ¶ 36, 
    250 P.3d 465
    (―We may affirm a grant of summary judgment upon any grounds
    apparent in the record.‖).
    ¶60 We first consider whether Chevron properly used a cross-
    appeal as a vehicle to brief this argument. We then determine
    whether we made a binding resolution of this issue in this court‘s
    prior opinion in this case. Because we decide that the election of
    remedies issue is properly before us, we then decide whether this
    doctrine bars Ms. Helf‘s lawsuit.
    A. Chevron’s Cross-Appeal
    ¶61 Litigants must cross-appeal ―if they wish to attack a
    judgment of a lower court for the purpose of enlarging their own
    rights or lessening the rights of their opponent.‖ State v. South, 
    924 P.2d 354
    , 355 (Utah 1996). ―Conversely, if appellees . . . merely desire
    the affirmance of the lower court‘s judgment, they need not, and
    should not, cross-appeal . . . .‖ Id. at 356. Improper cross-appeals
    unnecessarily lengthen the briefing process, ―multiply the number of
    briefs filed[,] and lead to confusion of the issues presented.‖ Id.
    ¶62 Although Chevron filed a notice of cross-appeal from the
    summary judgment, it does not seek to enlarge its rights under the
    judgment or lessen the rights of Ms. Helf. Instead, Chevron seeks an
    affirmance of the summary judgment in its favor on an alternative
    ground that was rejected by the district court—that the election of
    remedies doctrine bars the suit. Appellees, however, may not use a
    cross-appeal as a vehicle for arguing for the affirmance a district
    court‘s judgment. Appellees must instead raise an alternative
    ground for affirmance in the briefing of the initial appeal.
    19
    HELF v. CHEVRON
    Opinion of the Court
    ¶63 We therefore dismiss Chevron‘s cross-appeal. But we shall
    consider Chevron‘s election of remedies argument found in the
    briefing on the cross-appeal.
    B. The Law of the Case Doctrine Does Not Prohibit this Court from
    Considering Chevron’s Election of Remedies Argument
    ¶64 ―Under the law of the case doctrine, issues resolved by this
    court on appeal bind the trial court on remand, and generally bind
    this court should the case return on appeal after remand.‖ Gildea v.
    Guardian Title Co. of Utah, 
    2001 UT 75
    , ¶ 9, 
    31 P.3d 543
    . When applied
    to this court after a case returns to us for a second time, this doctrine
    ―is not an inexorable command that rigidly binds [this] court to its
    former decisions.‖ 
    Id.
     But we will not deviate from our prior
    decisions in a case unless we have good cause to do so. See 
    id.
    ¶65 Of course in order for the law of the case doctrine to apply
    at all, this court must have actually decided the issue in a prior
    opinion. Ms. Helf contends that we resolved the election of remedies
    issue in our previous opinion in this case, and that we should remain
    true to our prior decision. In our prior opinion, this court never so
    much as mentioned the election of remedies doctrine, much less
    decided the issue. In a short dissent, however, Justice Wilkins wrote
    that he would have affirmed the dismissal of the Ms. Helf‘s case
    because her election to pursue workers compensation benefits
    prohibited further suit against her employer. Helf v. Chevron U.S.A.,
    Inc., 
    2009 UT 11
    , ¶ 54, 
    203 P.3d 962
     (Wilkins, J., concurring in part
    and dissenting in part). Ms. Helf reasons, therefore, that this court
    implicitly rejected the position advocated by the dissent and that this
    implicit holding should bind the court in this appeal.
    ¶66 We disagree. Our silence on the election of remedies issue
    in our prior opinion was just that—silence. The court merely
    declined to address an issue that was not raised or briefed by parties
    in that appeal. The fact that one of the justices of this court wrote a
    separate opinion does not mean that the majority opinion contains
    an implicit holding that is diametrically opposed to the separate
    opinion. It simply means that the majority of the court made no
    holding on the issue. See Peak Alarm Co. v. Werner, 
    2013 UT 8
    , ¶ 11,
    
    297 P.3d 592
     (rejecting an argument that an opinion of this court
    contained an implicit holding where the opinion did not address or
    analyze the issue).
    ¶67 We conclude that the law of the case doctrine does not
    apply because we did not resolve the election of remedies issue in
    our prior opinion. We therefore address whether Ms. Helf made a
    20
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    Opinion of the Court
    binding election of remedies that bars her tort lawsuit when she
    applied for and received workers‘ compensation benefits.
    C. The Election of Remedies Doctrine Does Not Bar Ms. Helf’s Lawsuit
    1. The Election of Remedies Doctrine
    ¶68 In its most basic terms, the election of remedies doctrine
    ―prevent[s] double redress for a single wrong.‖ Angelos v. First
    Interstate Bank of Utah, 
    671 P.2d 772
    , 778 (Utah 1983) (internal
    quotation marks omitted). If a defendant wrongfully retains
    possession of a plaintiff‘s cow, for example, the plaintiff may not
    recover both the cow and the reasonable value of the cow. The
    plaintiff must elect one of these two remedies.
    ¶69 The election of remedies doctrine also refers to a plaintiff‘s
    choice between legally or factually inconsistent theories of recovery
    for a single wrong. 25 AM. JUR. 2D Election of Remedies § 1 (2014). One
    common example of the application of this rule occurs when a
    plaintiff is not paid for services rendered to a defendant. The
    plaintiff may either recover damages for breach of contract or, if no
    valid contract governs the services provided, the plaintiff may
    recover the reasonable value of the services under a quantum meruit
    claim. See RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST
    ENRICHMENT § 31 cmt. e (2011). Because a breach of contract remedy
    requires a valid, enforceable contract, while a quantum meruit
    remedy presupposes that no contract governs the services provided,
    a plaintiff may recover only one of these two inconsistent remedies.
    Reilly v. Natwest Markets Grp. Inc., 
    181 F.3d 253
    , 263–64 (2d Cir. 1999).
    ¶70 Thus, at its core, the election of remedies stands for the
    rather straight-forward principle that a plaintiff may not obtain
    either (1) a double recovery or (2) legally or factually inconsistent
    recoveries for the same wrong. The more difficult question is when a
    plaintiff should be deemed to have made an irrevocable election
    between available remedies or theories of recovery.
    ¶71 Where a plaintiff must choose between alternative
    remedies for a single theory of liability, an election is not final until a
    judgment is fully satisfied. Farmers & Merchs. Bank v. Universal C.I.T.
    Credit Corp., 
    289 P.2d 1045
    , 1049 (Utah 1955). Courts treat this type of
    election as a choice between consistent remedies because the
    remedies do not rest upon irreconcilable factual or legal theories. See
    
    id.
     Thus if a plaintiff obtains a judgment authorizing a writ of
    replevin for the return of a cow wrongfully obtained by a defendant,
    the election is not final until the cow is returned. If the plaintiff later
    discovers that the cow had died while in the defendant‘s possession,
    the plaintiff may still pursue a claim for payment of the reasonable
    21
    HELF v. CHEVRON
    Opinion of the Court
    value of the cow. See Largilliere Co., Bankers, v. Kunz, 
    244 P. 404
    , 404–
    05, 406 (Idaho 1925) (permitting a plaintiff to simultaneously pursue
    both a claim for damages for the conversion of a flock of sheep and a
    writ of replevin for the return of the sheep ―until a satisfaction of its
    demand is obtained‖ because these two remedies are consistent).
    ¶72 If a plaintiff must choose between inconsistent theories of
    liability, on the other hand, older cases held that a plaintiff makes a
    binding election between these theories of liability upon filing a
    complaint based upon one of these conflicting theories. Cook v.
    Covey-Ballard Motor Co., 
    253 P. 196
    , 199–200 (Utah 1927); Howard v.
    J.P. Paulson Co., 
    127 P. 284
    , 286 (Utah 1912). Commentators and
    courts alike have long criticized this antiquated version of the
    election of remedies doctrine, however, noting that this rule is
    unduly harsh to plaintiffs ―and frequently results in injustice.‖
    Charles P. Hine, Election of Remedies, A Criticism, 26 HARV. L. REV.
    707, 707 (1913); see also id. at 719 (―The modern rule of election of
    remedies is a weed which has recently sprung up in the garden of
    the common law, its roots stretching along the surface of obiter
    dicta but not reaching the subsoil of principle. The judicial gardeners
    through whose carelessness it has crept in should be able to
    eliminate it, or at least to prevent its further growth.‖); Bernstein v.
    United States, 
    256 F.2d 697
    , 705 (10th Cir. 1958) (―[The election of
    remedies doctrine] has been consistently criticized as harsh and not a
    favorite of equity.‖); Waffer Int’l Corp. v. Khorsandi, 
    82 Cal. Rptr. 2d 241
    , 251 (Ct. App. 1999) (―Courts and commentators have long
    recognized the harshness of the election of remedies doctrine and
    have for some time looked upon it with disfavor.‖ (internal
    quotation marks omitted)).
    ¶73 The harshness of this branch of the election of remedies
    doctrine in the nineteenth century and early twentieth century rested
    upon the strict pleading requirements of the time. During this
    period, several jurisdictions still followed the common law rule
    prohibiting pleadings in the alternative, although the trend was
    toward permitting alternative pleadings. Gregory Hankin,
    Alternative and Hypothetical Pleadings, 33 YALE L.J. 365, 365–67, 369
    (1924); see also Note, Election of Remedies: A Delusion?, 38 COLUM. L.
    REV. 292, 314 (1938). Other jurisdictions did not permit plaintiffs to
    amend their complaint to plead an alternative theory of recovery.
    Note, Election of Remedies: A Delusion?, 38 COLUM. L. REV. 292, 312–14
    (1938). These pleading rules, combined with a strict application of
    the election of remedies doctrine, required plaintiffs to choose at
    their peril between inconsistent theories of recovery when initiating
    a lawsuit.
    22
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    Opinion of the Court
    ¶74 The advent of liberal pleading rules, however, has
    eliminated this harsh interpretation of the election of remedies
    doctrine. See Bernstein, 
    256 F.2d at 706
     (―Whatever may be said for
    the common law doctrine of election of remedies before the advent
    of the Federal Rules of Civil Procedure, we are certain that there is
    no room for its application under applicable rules of procedure
    . . . .‖). Utah‘s modern pleading rules permit litigants to plead
    inconsistent theories of recovery in the alternative. UTAH R. CIV. P.
    8(e) (―A party may state a claim or defense alternately or
    hypothetically . . . .‖); see also Ripple v. Wold, 
    549 N.W.2d 673
    , 675
    (S.D. 1996) (―‗The election doctrine does not apply to preclude the
    plaintiff from pursuing inconsistent theories or even inconsistent
    factual assertions. Modern procedure permits alternative and
    inconsistent claims and also alternative and inconsistent defenses.‘‖
    (quoting DAN B. DOBBS, LAW OF REMEDIES § 9.4 (2d Ed. 1993)).
    Plaintiffs may even amend an initial pleading to add inconsistent
    theories of recovery if given permission to do so by the district court,
    which ―shall be freely given when justice so requires.‖ UTAH R. CIV.
    P. 15(a); see also Smith v. Grand Canyon Expeditions Co., 
    2003 UT 57
    ,
    ¶ 32, 
    84 P.3d 1154
     (―In Utah, rule 15 is interpreted liberally to allow
    parties the opportunity to fully adjudicate their claims on the
    merits.‖).
    ¶75 In the 1957 case, Parrish v. Tahtaras, we recognized that
    these liberal pleading rules obviated the former rule that a plaintiff‘s
    election among inconsistent remedies in a complaint is irrevocable.
    
    318 P.2d 642
    , 645 (Utah 1957). In that case, an architect sued the
    defendants under a breach of contract theory to recover for services
    rendered. Id. at 644. At a bench trial, however, the court awarded
    damages under a quantum meruit theory after granting a motion to
    amend the complaint to conform to the proof. Id. We held that ―[t]he
    alternate remedies [of breach of contract or in quantum meruit],
    although formerly limited by a strict election doctrine, may be
    pleaded in alternative form and may even be inserted by
    amendment late in the proceedings.‖ Id. at 645. Therefore, ―[i]t was
    not error for the trial judge to allow amendment late in the
    proceedings to show this alternative plea, the defendants not being
    in any way prejudiced by the ruling.‖ Id.
    ¶76 In a later case, we confirmed that modern pleading rules
    dictate that a court may not require a plaintiff to elect between
    inconsistent claims prior to trial:
    Rule 8(e) of our Rules of Civil Procedure permits either
    party to plead in the alternative, either in one count or
    defense, or in separate counts or defenses. To require a
    23
    HELF v. CHEVRON
    Opinion of the Court
    party to make an election between the alternative
    counts or defenses, particularly at the pretrial stage of
    the proceedings, would be to emasculate the rule and
    render it meaningless.
    Rosander v. Larsen, 
    376 P.2d 146
    , 146 (Utah 1962) (footnote omitted).
    This is in line with the modern view that a plaintiff may present
    inconsistent theories of liability at trial. Rule v. Brine, Inc., 
    85 F.3d 1002
    , 1011 (2d Cir. 1996); 28A C.J.S. Election of Remedies § 6 (2008)
    (―[M]any cases hold that a party is not required to elect between
    remedies before the trial or during the course of the trial or before
    the conclusion of trial, or at the pleading stage; he or she may plead
    and litigate inconsistent remedies and submit different theories of
    recovery to the jury, and is not required to elect a remedy prior to
    the submission of the case to the jury or prior to the jury‘s verdict.‖
    (footnotes omitted)). Once the fact-finder and the judge have
    resolved all factual and legal disputes related to the inconsistent
    theories of liability, the plaintiff is then entitled to the one remedy (if
    any) that is supported by the final determination of the law and the
    facts. Genetti v. Caterpillar, Inc., 
    621 N.W.2d 529
    , 546 (Neb. 2001)
    (―[A]lthough initially a buyer may present both theories and need
    not elect between them, the finding of either final acceptance or
    revocation of acceptance of nonconforming goods ultimately
    determines the available remedy.‖ (internal quotation marks
    omitted)).
    ¶77 Thus unless another doctrine, such as estoppel,7 dictates
    that a plaintiff‘s election among inconsistent remedies is final at an
    earlier stage of the litigation, an election is not binding ―until one
    remedy is pursued to a determinative conclusion.‖ Christensen v.
    Eggen, 
    577 N.W.2d 221
    , 224 (Minn. 1998) (emphasis omitted).
    7 ―If a party has more than one remedy . . . his manifestation of a
    choice of one of them by bringing suit or otherwise is not a bar to
    another remedy unless the remedies are inconsistent and the other
    party materially changes his position in reliance on the
    manifestation.‖ RESTATEMENT (SECOND) OF CONTRACTS § 378 (1981).
    One example of a situation where a plaintiff may be estopped from
    changing an election of remedies is where one party contracts to sell
    land to another party and the seller later repudiates the contract and
    the buyer sues for damages. If the seller relies upon the buyer‘s suit
    for damages to make valuable improvements to the land, the buyer
    may be estopped from amending the complaint to request specific
    performance of the purchase contract. Id. § 378 cmt. a, illus. 1.
    24
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    Opinion of the Court
    2. Application of the Election of Remedies Doctrine Where a Worker
    Brings Both a Workers‘ Compensation Claim and an Intentional Tort
    Claim
    ¶78 In applying these general principles to this case, we must
    examine the remedies available to an injured worker. A worker
    injured on the job may potentially recover either worker‘s
    compensation benefits or intentional tort damages. These two
    remedies are inconsistent. Workers‘ compensation benefits are paid
    to workers injured by an ―accident arising out of and in the course of
    the employee‘s employment.‖ UTAH CODE § 34A-2-401(1). These
    benefits are the exclusive remedy for work-related accidents. Id.
    § 34A-2-105(1). In order to recover tort damages for an injury, on the
    other hand, a worker must prove that an injury was caused by an
    intentional tort rather than an accident. Helf, 
    2009 UT 11
    , ¶ 18. The
    question before this court, therefore, is when does an injured worker
    make a binding election between these two inconsistent remedies?
    Because this is a legal question, we review the district court‘s ruling
    on it de novo. See Daniels v. Gamma W. Brachytherapy, LLC, 
    2009 UT 66
    , ¶ 46, 
    221 P.3d 256
    .
    ¶79 If these two remedies could be pursued in a single forum,
    the answer would be simple. The worker could plead in the
    alternative that the injury was caused by either an accident or an
    intentional tort, and after the fact-finder made a final determination
    regarding the nature of the injury, the worker would elect the
    remedy available under the facts found by the jury or administrative
    body. The problem, of course, is that a worker may not pursue these
    two remedies in a single forum. The labor commission has exclusive
    jurisdiction to award workers‘ compensation benefits for accidents,
    while the district court has exclusive jurisdiction to award damages
    for an intentional tort. See UTAH CODE § 34A-2-112; id. § 78A-5-102(1).
    ¶80 Because these remedies must be adjudicated in separate
    forums, a strict application of the election of remedies doctrine
    presents injured workers with a cruel dilemma. If a worker choses to
    apply for and receives workers‘ compensation benefits, the worker
    may be deemed to have made a binding election of this remedy
    because the worker pursued it to a ―determinative conclusion.‖
    Christensen, 577 N.W.2d at 224 (emphasis omitted). By accepting
    workers‘ compensation benefits for urgent financial needs, such as
    medical expenses or living expenses if the worker becomes disabled,
    a worker who may have been injured by an intentional tort would be
    barred from asserting a tort claim. If the worker instead elects to
    forego workers compensation benefits and gambles on an intentional
    tort claim, the worker would have to survive without any benefits,
    25
    HELF v. CHEVRON
    Opinion of the Court
    and the burden of sustaining potentially protracted litigation, until
    the completion of the trial and inevitable appeal or appeals. This
    hardship would in most cases be extreme because any worker
    contemplating a lawsuit would likely be severely injured in order to
    justify the expense and stress of a lawsuit against a well-funded
    employer.
    ¶81 Moreover, if the lawsuit lasts longer than the statute of
    limitations for a workers‘ compensation claim, then the worker (or
    the worker‘s family if the worker was killed) will be denied any
    recovery for the injury if the lawsuit is unsuccessful. See UTAH CODE
    § 34A-2-417(1) (a worker typically has one year to seek compensation
    for a medical expense caused by the work-related injury); id. § 34A-
    2-417(2) (six-year statute of limitations for partial or total disability
    benefits); id. § 34A-2-417(3) (one-year statute of limitations for a
    claim for death benefits). Because of the one-year statute of
    limitations for the recovery of most medical expenses and death
    benefits under workers‘ compensation, at minimum, a worker or
    heir who chooses to pursue a tort remedy will almost certainly lose
    the ability to claim these benefits if the lawsuit is unsuccessful.
    Ms. Helf‘s lawsuit, for example, has lasted twelve years so far and
    she has not been able to bring her case to trial yet, much less the
    likely posttrial appeal. The duration of this litigation has already
    greatly surpassed the current statute of limitations for any type of
    workers‘ compensation benefit. Thus, under a strict application of
    the election of remedies doctrine, workers would risk losing both
    remedies if they make a bad guess as to which remedy was
    appropriate.
    ¶82 This interpretation of the election of remedies doctrine,
    similar to the much-criticized application of the doctrine in the early
    twentieth century, effectively requires an injured worker to choose at
    peril between inconsistent remedies at an unreasonably early stage
    in the litigation. Forcing this choice is especially harsh because of the
    difficulty of predicting the outcome of an intentional tort suit.
    Because the line between an accident and an intentional tort is based
    upon the subjective knowledge and intent of the worker‘s
    supervisors, which most often must be inferred from the
    surrounding circumstances, see supra ¶ 47 & n.5, the worker is in a
    poor position to evaluate the odds of success before a jury resolves
    this factual dispute.
    ¶83 There is a fairly even split of authority among state
    supreme courts as to whether the election of remedies doctrine
    requires workers to make this choice between workers compensation
    26
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    Opinion of the Court
    benefits and a tort lawsuit.8 By our count, eight state supreme courts
    have held that a final adjudication of a right to receive workers‘
    compensation benefits constitutes a binding election that bars an
    intentional tort lawsuit.9 But nearly as many state supreme courts
    (we found seven) have held that a worker may pursue both remedies
    and that the receipt of workers‘ compensation benefits does not act
    as a bar to the pursuit of a tort remedy.10
    ¶84 Many of the courts that have rejected a strict application of
    the election of remedies doctrine have reasoned that it would require
    the worker to make a ―gambler‘s choice‖:
    Workmen‘s compensation is above all a security
    system; a strict election doctrine transforms it into a
    grandiose sort of double-or-nothing gamble. Such
    gambles are appealing to those who still think of the
    judicial process as a glorious game in which formal
    moves and choices are made at peril, and in which the
    ultimate result is spectacular victory for one side and
    utter defeat for the other. The stricken workman is in
    no mood for this kind of play, and should not be
    maneuvered into the necessity for gambling with his
    8 Some states have statutes that resolve this issue. An Arizona
    statute, for example, provides that if a worker accepts workers‘
    compensation benefits, the right to initiate a lawsuit against the
    employer is waived. ARIZ. REV. STAT. § 23-1024. Oregon and West
    Virginia statutes, on the other hand, explicitly permit workers to
    accept benefits without waiving the right to sue the employer. OR.
    REV. STAT. § 656.156(2); W. VA. CODE § 23-4-2(c).
    9Gourley v. Crossett Pub. Sch., 
    968 S.W.2d 56
    , 58 (Ark. 1998); Jones
    v. Martin Electronics, Inc., 
    932 So. 2d 1100
    , 1106–07 (Fla. 2006); Collier
    v. Wagner Castings Co., 
    408 N.E.2d 198
    , 204 (Ill. 1980); Advanced
    Countertop Design, Inc. v. Second Judicial Dist. Court ex rel. Cnty. of
    Washoe, 
    984 P.2d 756
    , 759 (Nev. 1999); Salazar v. Torres, 
    158 P.3d 449
    ,
    456–57 (N.M. 2007); Werner v. State, 
    424 N.E.2d 541
    , 543–44 (N.Y.
    1981); Schlenk v. Aerial Contractors, Inc., 
    268 N.W.2d 466
    , 472 (N.D.
    1978); Kohler v. McCrory Stores, 
    615 A.2d 27
    , 32 (Pa. 1992).
    10  Elliott v. Brown, 
    569 P.2d 1323
    , 1327 (Alaska 1977); Suarez v.
    Dickmont Plastics Corp., 
    639 A.2d 507
    , 514–16 (Conn. 1994); Dominguez
    ex rel. Hamp v. Evergreen Res., Inc., 
    121 P.3d 938
    , 942–43 (Idaho 2005);
    Gagnard v. Baldridge, 
    612 So. 2d 732
    , 735–36 (La. 1993); Millison v. E.I.
    du Pont de Nemours & Co., 
    501 A.2d 505
    , 518–19 (N.J. 1985); Woodson
    v. Rowland, 
    407 S.E.2d 222
    , 233–34 (N.C. 1991); Jones v. VIP Dev. Co.,
    
    472 N.E.2d 1046
    , 1054 (Ohio 1984).
    27
    HELF v. CHEVRON
    Opinion of the Court
    rights, under the guise of enforcing a supposed penalty
    against the employer.
    Suarez v. Dickmont Plastics Corp., 
    639 A.2d 507
    , 515 (Conn. 1994)
    (internal quotation marks omitted); accord Millison v. E.I. du Pont de
    Nemours & Co., 
    501 A.2d 505
    , 518–19 (N.J. 1985). Because most
    injured workers and their families are in no position to gamble on a
    tort remedy or wait out a lengthy and expensive litigation, the strict
    application of the election of remedies doctrine would effectively
    insulate employers from tort liability for intentionally caused injuries
    or death. Suarez, 639 A.2d at 515; Jones v. VIP Dev. Co., 
    472 N.E.2d 1046
    , 1054 (Ohio 1984). Thus employers would not be discouraged
    from engaging in intentional misconduct and would ―escape any
    meaningful responsibility for its abuses.‖ Jones, 472 N.E.2d at 1054;
    accord Woodson v. Rowland, 
    407 S.E.2d 222
    , 233–34 (1991). 11
    ¶85 We agree with the courts that have rejected a strict
    application of the election of remedies doctrine to injured workers.
    As one leading commentator has noted:
    [N]othing could be more foreign to the spirit and
    purpose of compensation legislation than the tricky
    and technical doctrine of election. With its origins in
    Roman law, and with its entire philosophy smacking of
    medieval legalism, it confronts the needy and often
    uneducated claimant not with the certainty of
    protection which compensation law exists to provide,
    but with a gambler‘s all-or-nothing choice.
    10 ARTHUR LARSON & LEX K. LARSON, LARSON‘S WORKERS‘
    COMPENSATION LAW § 115.05 (2014). The election of remedies
    doctrine is a rule of ―procedure or judicial administration.‖ 25 AM.
    JUR. 2D Election of Remedies § 2 (2014). It is equitable in nature and is
    invoked ―to the end that justice may be served.‖ 28A C.J.S. Election of
    Remedies § 1 (2008). As an equitable judicial principle, the election of
    remedies doctrine should be applied to produce fair outcomes for
    litigants. It certainly applies to prevent the worker from obtaining a
    11 The Idaho Supreme Court reasoned instead that the election of
    remedies doctrine does not apply to injured workers who accept
    workers‘ compensation benefits because the ―injury can be
    ‗accidental‘ from the perspective of an employee while at the same
    time being intentional on the part of the employer.‖ Dominguez, 
    121 P.3d at 942
    . We do not find this rationale persuasive because it is not
    the perspective of the worker or the employer that counts for the
    purposes of the election of remedies doctrine; it is the determination
    made by the fact-finder as to the nature of the injury.
    28
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    Opinion of the Court
    double recovery or recovering two inconsistent remedies. But it
    should not be applied to force the worker to make a binding election
    before knowing how a jury will resolve an intentional tort claim.
    ¶86 The district court, therefore, correctly ruled that the
    election of remedies doctrine does not bar Ms. Helf‘s lawsuit against
    Chevron. To avoid a double recovery, however, if Ms. Helf
    eventually prevails, she may not retain the inconsistent remedies of
    workers‘ compensation benefits and an award for tort damages. In
    order to prevent an inconsistent recovery, a worker ―who recovers
    civilly against his employer‖ may no longer receive workers‘
    compensation benefits and must ―reimburse the workers‘
    compensation carrier to the extent the carrier paid workers‘
    compensation benefits, or by permitting the carrier to become
    subrogated to the claimant‘s civil claim to the extent of benefits
    paid.‖ Woodson 
    407 S.E.2d at 233
    ; see also Bryan v. Utah Int’l, 
    533 P.2d 892
    , 894 (Utah 1975) (a worker who recovers damages in an
    intentional tort suit against a fellow employee must reimburse the
    party that paid workers‘ compensation benefits for the same
    injury).12
    CONCLUSION
    ¶87 We reverse the summary judgment in favor of Chevron
    and remand for further proceedings consistent with this opinion.
    12Ms. Helf argues that the worker‘s compensation benefits she
    has collected may be used as an offset to reduce any amount she may
    recover from Chevron in her lawsuit to prevent a double recovery.
    This solution, however, would permit workers to recover two
    inconsistent remedies for the same injury—a partial recovery in the
    form of workers‘ compensation benefits and a partial recovery for
    tort damages. The election of remedies doctrine prohibits the
    retention of inconsistent remedies.
    29
    HELF v. CHEVRON
    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    ASSOCIATE CHIEF JUSTICE LEE, dissenting:
    ¶88 The Utah Workers Compensation Act provides that ―[t]he
    right to recover compensation‖ in an administrative proceeding
    under the statute ―is the exclusive remedy against the employer‖ for
    ―any accident or injury or death, in any way contracted, sustained,
    aggravated, or incurred by the employee in the course of or because
    of or arising out of the employee‘s employment.‖ UTAH CODE § 34A-
    2-105(1) (emphasis added). A statutory claim is ―in place of any and
    all other civil liability whatsoever, at common law or otherwise.‖ Id.
    (emphasis added).
    ¶89 This exclusive remedy provision is the heart of the
    Workers Compensation Act. It preserves the essential bargain of
    workers compensation established almost a century ago in Utah. See
    Shattuck-Owen v. Snowbird Corp., 
    2000 UT 94
    , ¶ 19, 
    16 P.3d 555
    (referring to the ―quid pro quo‖ of the statute). Under this bargain,
    workers give up their right to sue their employers in tort for
    workplace injuries. In return, workers are granted the right to
    statutory remedies that are afforded without regard to proof of fault.
    See 
    id.
     (explaining that the statute gives employees a right to
    ―recover for job-related injuries without showing fault‖ while
    assuring that ―employers are protected from tort suits‖ (internal
    quotation marks omitted)).
    ¶90 Decades ago this court established an exception to this
    exclusive remedy provision. In Bryan v. Utah International, 
    533 P.2d 892
    , 894 (Utah 1975), we found the Act to be subject to an exception
    for claims based on ―an intentional act.‖ (emphasis added). In
    reaching that conclusion we noted that ―personal injury, by
    accident‖ is defined by statute to ―include injury caused by the
    willful act‖ of a fellow worker. Id.; see also UTAH CODE § 34A-2-
    102(1)(j)(i) (―‗Personal injury by accident arising out of and in the
    course of employment‘ includes an injury caused by the willful act of
    a third person directed against an employee because of the
    employee‘s employment.‖). But we found a distinction between a
    willful act and an intentional one, asserting that the latter implies
    ―that the act was not only done knowingly, but with the knowledge
    that it was wrongful to do it.‖ Bryan, 533 P.2d at 894. And we upheld
    a right to sue in tort for intentional acts, noting the ―policy of our law
    . . . to allow one injured through the intentional act of another[] to
    seek redress from the one intending harm‖ and emphasizing the
    ―salutary effect of deterring intentional injury.‖ Id.
    ¶91 We extended Bryan further in the decision we rendered at
    an earlier stage of this case, Helf v. Chevron U.S.A., Inc., 
    2009 UT 11
    ,
    30
    Cite as: 
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    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    
    203 P.3d 962
     (Helf I). In Helf I we held that proof of intent may be
    established in either of two ways—by proof ―that the actor desired
    the consequences of his actions‖ or by demonstrating ―that the actor
    believed the consequences were virtually certain to result.‖ Id. at ¶
    43. In so holding, we relied on the term ―accident‖ as it appears in
    the Act‘s exclusive remedy provision. We viewed the ―‗primary
    objective‘ of workers‘ compensation‖ as the elimination of
    ―‗industrial negligence, in all its forms, from the concept of the law
    of tort,‘‖ and concluded that while ―‗[a]ccidents are an inevitable
    part of industrial production,‖ ―intentional torts by employers are
    not.‖ Id. at ¶ 28 (quoting Bryan, 533 P.2d at 893, and Beauchamp v.
    Dow Chemical Co., 
    398 N.W.2d 882
    , 889 (Mich. 1986)). And, under a
    conception of accident encompassing ―unintended and unforeseen
    injurious occurrence[s],‖ id. ¶ 27 (quoting BLACK‘S LAW DICTIONARY
    15 (8th ed. 2004)), we deemed the Workers Compensation Act‘s
    exclusive remedy provision not to encompass acts that are
    intentional in the sense of either intending or expecting the injurious
    consequence, id. ¶ 43.
    ¶92 I would accept our holdings in Bryan and Helf I under the
    doctrine of stare decisis. Such decisions may be in tension with the
    clear terms of the Workers Compensation Act‘s exclusive remedy
    provision.1 But our holdings in these cases were square and
    1   This provision is not limited to liability for accidents. It
    encompasses all claims for ―any accident or injury or death, in any
    way contracted, sustained, aggravated, or incurred by the employee
    in the course of or because of or arising out of the employee‘s
    employment.‖ UTAH CODE § 34A-2-105(1) (emphasis added). And
    the workers compensation remedy is ―in place of any and all other
    civil liability whatsoever, at common law or otherwise.‖ Id.; see also
    Bryan v. Utah International, 
    533 P.2d 892
    , 895 (Utah 1975) (Crockett,
    J., dissenting) (noting that judicial recognition of liability for an
    intentional tort is ―plainly prohibited‖ by the terms of the exclusive
    remedy provision).
    The Bryan majority‘s decision, moreover, overlooked a provision
    in an earlier iteration of the Act that was subsequently repealed—a
    provision that stated that ―where an injury in employment resulted
    from willful misconduct or willful disregard of the employee‘s safety,
    the employee could have the option of either claiming compensation
    under the act or maintaining an action at law for damages.‖ 
    Id.
    (emphasis added). Because that provision was subsequently
    repealed, and replaced with a provision clarifying that the exclusive
    remedy provision extended to claims alleging willful misconduct,
    ―[i]t seems so obvious as to not admit of doubt that it was the intent
    31
    HELF v. CHEVRON
    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    straightforward. And they undoubtedly have sustained substantial
    reliance interests on the part of employees and employers. Unless
    and until our decisions become unworkable, or are overruled by the
    legislature, they are worthy of respect.
    ¶93 Respect for these decisions does not require that we extend
    them further, however. I respectfully dissent because I view the
    majority‘s decision as extending Bryan and Helf I in a manner that is
    incompatible with the clear terms of the Workers Compensation Act
    and that distorts the law of election of remedies. I further dissent
    from the court‘s determination that the district court erred when it
    excluded deposition testimony offered by Helf, as the court‘s
    analysis on this point is inconsistent with the terms of rule 32(c) of
    the Utah Rules of Civil Procedure.
    ¶94 I would affirm on the ground that Jenna Helf voluntarily
    opted for the remedies available to her in workers compensation, in
    a manner foreclosing her right to sue in intentional tort under Bryan
    and Helf I. Alternatively, I would affirm on the ground that the
    deposition testimony proffered by Helf was properly excluded by
    the district court.
    I
    ¶95 The doctrine of election of remedies is longstanding and
    well-settled. One branch of the doctrine is a bar on double recovery.
    But there is more to the doctrine than that. As the majority
    acknowledges, the doctrine of election of remedies also precludes a
    plaintiff from advancing ―legally or factually inconsistent recoveries
    for the same wrong.‖ Supra ¶ 70. Under this branch of the doctrine, a
    plaintiff‘s election of a remedy is final once a ―judgment is fully
    satisfied.‖ Supra ¶ 71 (citing Farmers & Merchs. Bank v. Universal
    and purpose‖ of the legislature to make workers compensation the
    exclusive remedy for all claims for compensation for workplace
    injuries. Id.; see also id. at 895–96 (―I cannot perceive how the statute
    could make it more clear that when workmen‘s compensation
    coverage is provided, that is the only remedy an injured employee
    has against his employer or a fellow employee. Whatever moral
    aspects of such a situation may be, that is the state of our law. . . . If
    there is to be any variance from or change in the law as declared by
    th[e] statute, it should be made by the legislature.‖).
    Justice Crockett seems to have had the better of the argument in
    Bryan. But there has been a lot of water under the bridge since Bryan.
    So although I would have been inclined to rule otherwise on a
    matter of first-impression, I would leave Bryan and Helf I in place for
    purposes of our decision in this case.
    32
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    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    C.I.T. Credit Corp., 
    289 P.2d 1045
    , 1049 (Utah 1955)). Satisfaction of
    the judgment, moreover, precludes more than just double recovery;
    it bars the plaintiff from asserting a new claim that is legally or
    factually incompatible with the already-satisfied claim.            See
    RESTATEMENT (SECOND) OF TORTS § 896 cmt. a (1979) (―[W]hen the
    claim has been extinguished, as by judgment, or by satisfaction . . . a
    person is necessarily precluded from pursuing the other remedy.‖);
    RESTATEMENT (FIRST) OF RESTITUTION § 144 cmt. a (1937) (―[W]here
    conduct extinguishes the basic claim, as where there has been a
    recapture of goods or a satisfaction of the claim, . . . a person is
    necessarily precluded from pursuing the other remedy.‖).
    ¶96 This principle is both simple and well-settled. It holds the
    plaintiff to its initial election once a judgment is final and satisfied by
    the defendant. And it precludes subsequent litigation on an
    inconsistent theory of liability—not just because double recovery is
    prohibited, but because it is unfair to subject the defendant to a
    subsequent round of litigation on a new, inconsistent theory of
    liability. See, e.g., F.T.C. v. Leshin, 
    719 F.3d 1227
    , 1232 (11th Cir. 2013)
    (The doctrine of election of remedies . . . . limits a party with the
    choice of two remedies that are inconsistent with each other from
    obtaining both remedies or from obtaining first the one remedy and
    then, at a later date, an alternative one.‖ (internal quotation marks
    omitted)); Connectu LLC v. Zuckerberg, 
    522 F.3d 82
    , 89 (1st Cir. 2008)
    (―The election of remedies doctrine is grounded on equitable
    principles.‖); see also AM. JUR. 2D Election of Remedies § 3. That
    principle should apply here. Ms. Helf filed a workers compensation
    claim and was awarded compensation on the basis of an allegation
    that her injuries resulted from a workplace accident. Under the
    doctrine of election of remedies, Helf should now be barred from
    advancing the inconsistent theory that her injuries were the result of
    an intentional tort. By allowing Helf to treat her injury as caused both
    by an accident and an intentional tort, we flatly contradict Helf I,
    which found injuries due to the latter cause could not also be
    attributed to the former. See Helf I, at ¶¶ 28, 43.
    ¶97 A stricter variation on this rule has long since been
    abandoned. Under the liberal pleading standards of the rules of civil
    procedure, we no longer foreclose plaintiffs from merely asserting
    inconsistent theories of liability in alternative claims in a single
    proceeding. See UTAH R. CIV. P. 8(e) (allowing pleading in the
    alternative); Parrish v. Tahtaras, 
    318 P.2d 642
    , 645 (Utah 1957)
    (recognizing that modern pleading rules obviate the election of
    remedies bar on alternative pleading). But our rules of procedure say
    nothing of relevance to the assertion of a new theory of liability in a
    33
    HELF v. CHEVRON
    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    separate suit filed after the entry and satisfaction of a final judgment
    on an incompatible one. And we have never departed from our
    longstanding commitment to the preclusion of such new claims.
    ¶98 Until today. The majority declines to give preclusive effect
    to the final judgment on Helf‘s workers compensation claim under a
    longstanding principle of the doctrine of election of remedies. It does
    so, moreover, in apparent recognition of the fact that Helf‘s claim is
    barred under the law as it now stands—a law it deems ―‗tricky and
    technical,‘‖ and subject to adaptation by the court to ―produce fair
    outcomes for litigants.‖ Supra ¶ 85 (quoting 10 ARTHUR LARSON &
    LEX K. LARSON, LARSON‘S WORKERS‘ COMPENSATION LAW § 115.05
    (2014)). Thus, seeing a ―cruel dilemma‖ for workers faced with a
    choice between a workers compensation claim and an intentional
    tort claim, the court declines to give ―strict application‖ to the
    doctrine of election of remedies. Supra ¶ 80. It also recognizes an
    inequity in its decision, however—in the potential for ―double
    recovery.‖ Supra ¶ 85. So although the court does not foreclose Helf‘s
    claim, it establishes a right of her employer to seek reimbursement to
    the extent of any payment of workers compensation benefits if Helf
    prevails in her tort claim. Supra ¶ 86.
    ¶99 I respectfully dissent from this decision. The law of
    election of remedies may be a ―rule of ‗procedure or judicial
    administration.‘‖ Supra ¶ 85. But it is—and has long been—the law
    of this state. A litigant like Chevron should be entitled to rely on it.
    The doctrine of election of remedies assures ―fair outcomes‖ for all
    litigants, not just plaintiffs. And a core element of this law, from the
    standpoint of a defendant, is a right of repose—a right to rely on the
    finality and preclusive effect of a judgment that has been satisfied by
    the defendant. Dep’t of Envtl. Mgmt. v. State, 
    799 A.2d 274
    , 277 (R.I.
    2002) (―The doctrine of election of remedies is one that is grounded
    in equity and is designed to mitigate unfairness to both
    parties . . . .‖(emphasis added)); Barbe v. Villeneuve, 
    505 So. 2d 1331
    ,
    1332 (Fla. 1987) (―The election of remedies doctrine is an application
    of the doctrine of estoppel . . . .‖). See also AM. JUR. 2D Election of
    Remedies § 3 (2014) (―The doctrine of election of remedies, being
    equitable in nature, is designed to mitigate possible unfairness to
    both parties‖ (emphasis added) (footnote omitted)). The court
    arbitrarily overrides this important policy in preserving ―fairness‖
    for plaintiffs like Ms. Helf.
    ¶100 In so doing, the majority not only distorts the doctrine of
    election of remedies; it also overrides the clear terms of the exclusive
    remedy provision of the Workers Compensation Act. That provision,
    as noted, provides that an administrative action ―is the exclusive
    34
    Cite as: 
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    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    remedy against the employer‖ for ―any accident or injury or death‖
    sustained ―in the course of or because of or arising out of the
    employee‘s employment,‖ and is ―in place of any and all other civil
    liability whatsoever, at common law or otherwise.‖ UTAH CODE
    § 34A-2-105(1). Our prior decisions have made inroads on the
    seemingly categorical terms of this provision. I accept those
    decisions, as noted above, as a matter of stare decisis. But I cannot
    accept the court‘s decision to extend the intentional tort exception in
    a manner doing further violence to the clear terms of the Workers
    Compensation Act.
    ¶101 Perhaps an intentional tort can be deemed to fall outside
    the Act—because, for example, only accidents, and not intentionally
    tortious acts, ―‗are an inevitable part of industrial production.‘‖ Helf
    v. Chevron U.S.A., Inc., 
    2009 UT 11
    , ¶ 28, 
    203 P.3d 962
     (quoting
    Beauchamp v. Dow Chemical Co., 
    398 N.W.2d 882
    , 889 (Mich. 1986)).
    But the reality is that the line between these two events will often be
    a fuzzy one. That is particularly true in a case like this one, where the
    defendant‘s alleged intent is not in a motive to cause harm but in
    engaging in conduct ―expected‖ to produce such a result. In a case
    like this, it should hardly be surprising for a plaintiff to opt to file an
    administrative claim under the Workers Compensation Act—to take
    advantage of the ―simple, adequate, and speedy‖ remedy available
    by statute. Park Utah Consol. Mines Co. v. Indus. Comm’n, 
    36 P.2d 979
    ,
    981 (1934). In advancing that claim, moreover, the employee has
    necessarily established that she suffered an injury arising out of her
    employment. And she has secured the full advantage of the
    remedies available under the Act when her employer satisfied the
    judgment entered against it.
    ¶102 I see nothing unfair about holding the employee to the
    benefit of the bargain she sought in securing the recovery available
    to her under the Workers Compensation Act. That conclusion
    follows not only as a matter of the law of election of remedies, but
    also, quite clearly, from the exclusive remedy provision of the Act.
    Once the employee has sued and recovered on a claim for an injury
    arising out of her employment, the legislature has clearly directed
    that such is the exclusive remedy, replacing any common law claim.
    We are bound by that directive—even if we see unfairness in the
    ―dilemma‖ it presents to employees. Supra ¶ 80. The answer to that
    concern is not to override the terms of the statute; it is to defer to the
    legislature‘s policy judgment, while leaving any concerns with it to
    the process for statutory amendment.
    ¶103 The dilemma described by the majority, moreover, is
    overstated. In most cases (this one included), the employee will have
    35
    HELF v. CHEVRON
    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    access to most of the relevant evidence at the time she decides
    whether to allege an accident or an intentional tort. The outcome of
    the plaintiff‘s preferred claim may not be certain, but the relevant
    facts likely will be well known. Thus, a plaintiff who chooses to
    initiate a tort claim cannot be sure that her suit will succeed, but she
    will likely have the evidence she needs to decide whether to pursue
    that route instead of a workers compensation claim. And for that
    reason the principal effect of the majority‘s decision is not to assure
    fairness to litigants but to preserve the plaintiff‘s right to have it both
    ways—to secure all of the upsides of the ―simple, adequate, and
    speedy‖ remedy available under the Workers Compensation Act,
    Park Utah Consol. Mines Co, 
    36 P.2d at 981
    , while still preserving the
    possibility of a bigger payout in a subsequent tort suit.
    ¶104 Our concern for fairness ought to spark more than a one-
    sided interest in expanding an employee‘s grounds for recovery. It
    should also lead us to consider the legitimate interests of employers
    in relying on the finality of a workers compensation judgment that is
    both final and satisfied by the employer. We can protect those
    interests without closing the door to an intentional tort suit.
    ¶105 An employee who believes she is the victim of a
    workplace act that could alternatively be conceived as either
    accidental or intentional can make an informed election of her
    preferred remedy—of a streamlined workers compensation claim
    (which would hold the promise of defined benefits without regard to
    fault) or a more drawn out tort claim (with greater upside in terms of
    damages but the uncertainties inherent in a requirement of proving
    fault). Such a choice may not always be easy2; but I see nothing
    2 The standard for invoking the doctrine of election of remedies
    has nothing to do with the ease of the plaintiff‘s election. Our law
    requires only a ―knowledgeable selection‖ of one remedy over
    another that is ―free of fraud or imposition.‖ Royal Res., Inc. v.
    Gibralter Fin. Corp., 
    603 P.2d 793
    , 796 (Utah 1979). That standard is
    easily met here. To the extent a plaintiff like Ms. Helf faces a
    ―dilemma,‖ supra ¶ 80, it is only because the choice between a
    streamlined claim for a limited benefit and a more difficult claim
    with greater upsides is an inherently difficult one. That has never
    been a basis for overriding the doctrine of election of remedies,
    however, and it should not be such here. See United States v. Oregon
    Lumber Co., 
    260 U.S. 290
    , 301 (1922) (explaining that merely
    ―underestimat[ing] the strength of [your] cause‖ is not enough to
    avoid the effect of the doctrine of election of remedies; stating that ―if
    that were sufficient to warrant the bringing of a second and
    36
    Cite as: 
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    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    unfair about holding a plaintiff to the election she made voluntarily.
    Our law of election of remedies has long held the plaintiff to that
    choice. It is unfair to the employer to abandon that law in a manner
    that gives the plaintiff all of the upsides of a workers compensation
    claim without granting the employer the benefit of the guarantee of
    the exclusive remedy provision of the Workers Compensation Act.
    ¶106 A worker who sues and recovers on a workers
    compensation claim has the benefit of the exclusive remedy assured
    to her under the Workers Compensation Act. That is the course that
    Ms. Helf chose in this case, and she should be held to that choice.
    ¶107 The opposite course—of suing on an intentional tort
    instead of filing a workers compensation claim—may be
    economically taxing to a plaintiff. See supra ¶ 80 (raising concerns
    about a plaintiff‘s ability to ―survive without any benefits‖ during
    ―potentially protracted litigation‖). But that is the whole point of the
    workers compensation scheme. The statute provides a streamlined
    mechanism for an award of benefits without regard to proof of fault
    in order to minimize the hardship to employees who are injured on
    the job. There is a quid pro quo for that streamlined process, however.
    In exchange for streamlined benefits the statute cuts off the
    employee‘s right to sue in tort.
    ¶108 I dissent from a decision that preserves the benefit of the
    workers compensation bargain for employees while depriving
    employers of their side of the deal. Policy concerns over the fairness
    of the exclusive remedy provision should be directed to the
    legislature. We overstep our authority in bending the law of election
    of remedies in a manner overriding the clear terms of the Workers
    Compensation Act.3
    inconsistent action the result would be to confine the defense of
    election of remedies to cases where the first suit had been won by
    [the] plaintiff and to deny it in all cases where plaintiff had lost,‖ and
    that election is ―determined by the bringing and maintenance of the
    suit, not by the final disposition of the case by the court‖).
    3 The majority‘s decision to recognize an employer‘s right to seek
    reimbursement for workers compensation benefits paid by an
    employer or insurer, supra ¶ 86, is perhaps laudable as a matter of
    policy or fairness. But it only highlights the fact that the court is
    overwriting the clear terms of the Workers Compensation Act. The
    statute, of course, has no provision for such a claim for
    reimbursement. So the majority‘s decision can only be understood as
    a judicial rewrite—a decision to fill in a hole that the court finds in
    the terms of the statute (a hole created by our decisions in Bryan v.
    37
    HELF v. CHEVRON
    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    ¶109 The cases cited by the majority, supra ¶ 83 n.10, are
    unpersuasive for two reasons. First, the holdings of two of those
    cases were mandated by state statutes establishing an intentional tort
    exception to the applicable exclusive remedy provision.4 Second, the
    remaining cases speak only to the common law question presented—
    of the fairness of giving effect to the doctrine of election of remedies
    in a manner cutting off claims of employees,5 or of the policy concern
    Utah Internationall, 
    533 P.2d 892
     (Utah 1975) and Helf v. Chevron
    U.S.A., Inc., 
    2009 UT 11
    , 
    203 P.3d 962
    ).
    4 See Gagnard v. Baldridge, 
    612 So. 2d 732
    , 735 (La. 1993) (―In 1976,
    the legislature amended Section 1032 of the Worker‘s Compensation
    Act to make the exclusive nature of the compensation remedy
    inapplicable to intentional acts.‖); Dominguez ex rel. Hamp v.
    Evergreen Res., Inc., 
    121 P.3d 938
    , 943 (Idaho 2005) (―In this case, [the
    petitioner] has alleged a willful or unprovoked physical aggression
    by his employer, and therefore his claim falls into a statutory
    exception to the exclusive remedy rule.‖).
    5 See Suarez v. Dickmont Plastics Corp., 
    639 A.2d 507
    , 515 & n.9
    (Conn. 1994) (―Although the doctrine of election, to the extent that it
    is designed to prevent double redress for the same injury, has a
    sound basis, it can also serve to destroy all rights under
    compensation acts without justification. . . . To the extent that the
    election requirement may interfere with an injured employee
    receiving compensation for his or her injuries, it should be
    avoided‖); Millison v. E.I. du Pont de Nemours & Co., 
    501 A.2d 505
    ,
    518–19 (N.J. 1985) (―Precluding plaintiffs from a common-law cause
    of action for intentional wrongs because they have already chosen to
    seek the relief available under workers‘ compensation would be an
    unduly harsh and technical application of the election-of-remedies
    doctrine. . . . Plaintiffs who lose that gamble [of selecting a tort suit
    over workers compensation] will be left totally uncompensated
    . . . .‖); Woodson v. Rowland, 
    407 S.E.2d 222
    , 233 (N.C. 1991) (―The
    result thus obtained [allowing simultaneous workers compensation
    claims and tort suits] would be a more equitable one than forcing an
    employee who believes in good faith that he was injured by the
    intentional misconduct of his employer to forgo his compensation
    claim in order to maintain his common law claim.‖) (internal
    quotation marks omitted); Jones v. VIP Development Co., 
    472 N.E.2d 1046
    , 1054 (Ohio 1984) (―To consider the receipt of benefits a
    forfeiture of an employee‘s right to pursue the employer in the
    courts would not only be harsh and unjust, it would also frustrate
    the laudable purposes of the Act . . . .‖).
    38
    Cite as: 
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    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    regarding perverse incentives for employers.6 That analysis falls
    short, as noted above, because it ignores the interest of fairness to
    employers. But it also fails to account for the clear terms of the
    exclusive remedy provision of the Workers Compensation Act. It is
    one thing to say that a workplace injury sustained as a result of an
    intentional tort is somehow not an ―injury . . . in the course of or
    because of or arising out of the employee‘s employment.‖ UTAH
    CODE § 34A-2-105(1). It is quite another, however, to say that such an
    injury once characterized as such in a suit brought to fruition (and
    satisfaction) by an employee can later lose that character in a
    subsequent suit filed by the same employee.7
    ¶110 None of the cases cited by the majority offer a basis for
    reconciling the decision to abandon the doctrine of election of
    remedies with the clear terms of the Workers Compensation Act. 8 I
    6  Elliott v. Brown, 
    569 P.2d 1323
    , 1327 (Alaska 1977) (―We do not
    believe it would be wise public policy to allow an intentional
    tortfeasor to shift his liability for his acts to such a fund. Assaults by
    fellow workers differ not in degree but in kind from the type of harm
    the [workers compensation] statute was enacted to deal with.―).
    7 The unfairness of allowing the employee to have it both ways is
    underscored by a straightforward application of the doctrine of issue
    preclusion. Under settled law, the final resolution of an issue in a
    first round of litigation is binding on the same parties in a
    subsequent case. See, e.g., Oman v. Davis Sch. Dist., 
    2008 UT 70
    , ¶ 31,
    
    194 P.3d 956
    ; see also RESTATEMENT (SECOND) OF JUDGMENTS § 27
    (1982). This principle, moreover, is rooted in core concerns as to
    fairness. See, e.g., Jack Faucett Assocs., Inc. v. Am. Tel. & Tel. Co., 
    744 F.2d 118
    , 125 (D.C. Cir. 1984) (―This notion of fairness reflects the
    equitable nature of issue preclusion.‖). It makes little sense to require
    the same parties to relitigate an issue that was conclusively resolved
    in earlier proceedings.
    8 For the most part, the cited cases are rooted in the courts‘
    insistent confidence in their understanding of the true purpose of
    workers compensation—that the ―spirit and purpose‖ of workers
    compensation is compatible with a subsequent suit alleging an
    intentional tort. See Jones v. VIP Dev. Co., 
    472 N.E.2d 1046
    , 1054 (Ohio
    1984). Our role in statutory interpretation, however, is not to give
    effect to a law‘s amorphous purpose; it is to follow its text. See Hughes
    Gen. Contractor, Inc. v. Utah Labor Comm’n, 
    2014 UT 3
    , ¶ 29, 
    322 P.3d 712
     (―[T]he interpretive function for us is not to divine and
    implement the statutory purpose, broadly defined. It is to construe
    its language.‖); Strohm v. ClearOne Commc’ns, Inc., 
    2013 UT 21
    , ¶ 32,
    
    308 P.3d 424
     (―The text of the statutory . . . scheme is the governing
    39
    HELF v. CHEVRON
    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    would give effect to the statute. And I would leave any policy
    concerns regarding the effects on plaintiffs to the process for
    legislative amendment.
    II
    ¶111 Under our rules of civil procedure, ―[o]bjections to the
    competency of a witness or to the competency, relevancy, or
    materiality of testimony are not waived by failure to make them
    before or during the taking of the deposition, unless the ground of
    the objection is one which might have been obviated or removed if
    presented at that time.‖ UTAH R. CIV. P. 32(c)(3)(A). The majority
    views this rule as overriding the ground identified by the district
    court for refusing to consider the deposition testimony advanced by
    Ms. Helf on summary judgment. In the deposition in question, a
    union representative was asked by counsel for Chevron whether the
    dayshift supervisor had any ―role‖ in ―instructing Ms. Helf to
    neutralize the pit on the nightshift.‖ The deponent didn‘t answer
    that question. Instead he volunteered, based on an ―interview‖ that
    the union representative had with the dayshift supervisor, that the
    dayshift supervisor had given a ―turnover to the nightshift
    [supervisor],‖ in which he told him ―what they had tried, what had
    happened, the alarms went off, people … got sick,‖ or in other words
    ―just ma[king] him aware . . . that they got so many complaints of the
    odor, people getting sick and the alarms, that they shut it down.‖
    public policy in this area. . . . By applying the statute as written, we
    remain faithful to the public policy embraced by the legislature.‖);
    Hooban v. Unicity Int’l, 
    2012 UT 40
    , ¶ 17, 
    285 P.3d 766
     (―Our
    evaluation of the statute‘s purpose must start with its text . . . .);
    Myers v. Myers, 
    2011 UT 65
    , ¶ 28, 
    266 P.3d 806
     (―Our role in
    interpreting this statute is to read and interpret its text‖). Because the
    text of the exclusive remedy provision is clear, moreover, we cannot
    override it with our sense of the legislature‘s true purpose. See Olsen
    v. Eagle Mountain City, 
    2011 UT 10
    , ¶ 23 & n.6, 
    248 P.3d 465
    (―[S]peculation as to a contrary legislative purpose cannot quash our
    construction of the plain language.‖); Schroeder Invs., L.C. v. Edwards,
    
    2013 UT 25
    , ¶ 25, 
    301 P.3d 994
     (―[O]verrid[ing] clear statutory text on
    policy grounds misperceives the judicial function.‖ (internal
    quotation marks omitted)); Hooban v. Unicity Int’l, Inc., 
    2012 UT 40
    , ¶
    17, 
    286 P.3d 766
     (―Where the statute‘s language marks its reach in
    clear and unambiguous terms, it is our role to enforce a legislative
    purpose that matches those terms, not to supplant it with a narrower
    or broader one . . . .‖).
    40
    Cite as: 
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    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    ¶112 Chevron‘s counsel made no objection to this testimony
    during the deposition. But in the course of the summary judgment
    proceedings, Chevron did file a motion to strike it, asserting that it
    was hearsay and that the union representative lacked personal
    knowledge. The district court rejected those grounds, but
    nonetheless excluded the testimony on the grounds that it lacked
    foundation and was nonresponsive to the question asked. And the
    court granted Chevron‘s motion for summary judgment on the
    ground that Helf had failed to produce admissible evidence that the
    night supervisor knew that workers had been sickened by the
    neutralization process during the day shift.
    ¶113 I would affirm that decision. In so doing I would reject the
    argument advanced by Ms. Helf—and endorsed today by the
    majority—deeming the court‘s grounds for excluding the deposition
    testimony subject to waiver under rule 32(c) of the Utah Rules of
    Civil Procedure.
    ¶114 This rule applies only to objections (as to competency,
    relevance, or materiality) that could have been ―obviated or removed
    if presented at that time.‖ 
    Id.
     In context, and in line with
    longstanding practice and settled caselaw, such objections are those
    that could be ―obviated or removed‖ by the reformulation of the
    question by the attorney asking it. See, e.g., 21 CHARLES ALAN WRIGHT &
    KENNETH W. GRAHAM, JR., FEDEDERAL PRACTICE & PROCEDURE §
    5037.6 (2d ed. 2005); Rosary-Take One Prod. Co. v. New Line Distrib.,
    Inc., no. 89 Civ. 1905(CSH), 
    1996 WL 79328
    , at *2 (S.D.N.Y. Feb. 23,
    1996). That is the only way an objection along these lines could be
    ―obviated or removed,‖ as there is no judge presiding at the
    deposition standing ready to rule on an objection that goes to
    admissibility. Thus, the exception in rule 32(c) has long been
    understood to apply only to objections that can be remedied by a
    reformulation of the question that was posed; for other objections
    (remediable only by a ruling by the court, for example), the general
    rule of non-waiver applies. See 8A CHARLES ALLEN WRIGHT, ARTHUR
    R. MILLER & RICHARD L. MARCUS, 8A FEDERAL PRACTICE & PROCEDURE
    § 2151 (3d ed. 2010).
    ¶115 This principle is reinforced by at least one of the
    authorities cited by the majority, Jordan v. Medley, 
    711 F.2d 211
     (D.C.
    Cir. 1983). The Jordan case involved a claim for civil assault, and an
    attempt by the plaintiff to introduce evidence of a prior charge
    against the defendant for a crime of assault with a dangerous
    weapon. This matter had come up during a deposition of the
    defendant, in which the defendant was asked about prior charges
    against him, and he responded (without any objection), ―assault with
    41
    HELF v. CHEVRON
    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    a dangerous weapon.‖ 
    Id. at 217
    . At trial, plaintiff sought to foreclose
    any objection to the admissibility of this evidence under rule 32(c) of
    the Federal Rules of Civil Procedure, asserting that defendant had
    waived his right to object at trial because ―if objection to the inquiry
    concerning criminal charges had been made at the time of the
    deposition, the inquiry could have been limited to criminal
    convictions.‖ 
    Id. at 218
    . Yet the D.C. Circuit rejected that argument. It
    explained that an objection under these circumstances ―would have
    ‗obviated or removed‘ the objection only by simultaneously
    eliminating the testimony in question, which is evidently not what
    the Rule has in mind.‖ 
    Id.
     If that were the law, the court explained,
    ―all failures to object would produce a waiver, and the Rule‘s
    exception would be converted into an invariable rule.‖ 
    Id.
     Because
    rule 32(c) ―obviously envisions‖ a circumstance where ―a timely
    objection (e.g., on the ground of failure to lay an adequate
    foundation) could have enabled the problem to be remedied so that
    the same testimony could be received in accordance with law,‖ the
    court rejected the argument for waiver.9 
    Id.
     (citation omitted).
    ¶116 The same conclusion is appropriate here. The problems
    with the union representative‘s testimony are not issues that could
    have been obviated by a reformulation of the question posed by
    counsel. Instead the issue went to the admissibility of the deponent‘s
    testimony—of his hearsay assertions regarding the statements that
    the day supervisor made to the night supervisor (according to an
    ―interview‖ the union representative had with the day supervisor).
    No reformulation of the question could obviate the problems with
    that testimony. An objection could only have ―eliminat[ed] the
    testimony in question, which is evidently not what [rule 32(c)] has in
    mind.‖ 
    Id.
     There is no way a ―timely objection . . . could have
    enabled the problem to be remedied so that the same testimony could
    be received in accordance with law.‖ 
    Id.
     So this is not the kind of
    objection that Chevron was required to raise during the deposition.
    For that reason the general rule (no objection required) was properly
    invoked by the district court.
    ¶117 An ―objection‖ is, by its very nature, an assertion raised by
    an opponent. See Wright & Miller, 21 CHARLES ALAN WRIGHT &
    KENNETH W. GRAHAM, JR., FEDEDERAL PRACTICE & PROCEDURE §
    9 See also McKelvy v. Darnell, 
    587 So. 2d 980
    , 984 (Ala. 1991) (―The
    rule requires that, if a timely objection would enable the questioner
    to remedy the problem so that the same testimony could be received in
    accordance with law, the objection must be made at the time the
    deposition is taken.‖).
    42
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    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    5037.6 (2d ed. 2005) (―[O]ne must object to a nonresponsive answer
    at the deposition because the proponent could simply ask an
    appropriate question to make the evidence admissible‖). It seems
    more than a little strange to speak of a party‘s duty to object to the
    form of its own question. I would read rule 32(c) in light of this
    understanding. I would limit it to an opposing party‘s objection to a
    question posed to a deponent. See id.; see also McKelvy v. Darnell, 
    587 So. 2d 980
    , 984 (Ala. 1991) (―The rule requires that, if a timely
    objection would enable the questioner to remedy the problem so that
    the same testimony could be received in accordance with the law, the
    objection must be made at the time the deposition is taken‖)
    (emphasis added); Rosary-Take One Prod., 
    1996 WL 79328
    , at *2) (―The
    policy underlying the rule is to give the inquiring attorney an
    opportunity to cure the defect . . . .‖ (emphasis added)).
    ¶118 The majority‘s contrary conclusion may find some support
    in a few outlying cases. See supra ¶ 39 (citing Kirschner v. Broadhead,
    
    671 F.2d 1034
     (7th Cir. 1982)). But it is difficult to reconcile with the
    terms of the rule. An opposition to the admissibility of a deponent‘s
    testimony by the party conducting the deposition is not an objection
    that could be obviated by the reformulation of a question; it is a
    motion to strike the answer.
    ¶119 Today‘s decision will result in no small degree of upheaval
    in deposition practice in Utah. If a party conducting a deposition has
    an obligation to preserve a motion to strike testimony it deems
    inadmissible, depositions are sure to be bogged down in collateral
    objections (raised on the record but with no judge to rule on them).
    That practice runs directly contrary to the obvious intent of rule 32.
    See 21 WRIGHT, supra, § 2156 (noting that the rule is aimed at assuring
    that depositions ―not be unduly lengthened or obstructed by
    interposing objections‖).
    ¶120 The court‘s new requirement, moreover, will surely catch
    many parties unawares. It will hardly come naturally for an attorney
    conducting a deposition to lay the groundwork for rehabilitating
    testimony that is problematic but inadmissible on its face. But that is
    what the court today requires in reading rule 32(c) to require
    preservation of a motion to strike inadmissible evidence.
    ¶121 I respectfully dissent. I would read rule 32(c) to be limited
    to objections by an opponent that could be obviated by the
    reformulation of the deposing party‘s question. And because the
    matter here was not such a matter, I would reject the waiver
    argument raised by Ms. Helf. Absent any argument for waiver,
    moreover, I would affirm the district court‘s decision to strike the
    deposition in question.
    43
    HELF v. CHEVRON
    ASSOCIATE CHIEF JUSTICE LEE, dissenting
    ¶122 That decision would also lead me to affirm the district
    court‘s decision granting Chevron‘s motion for summary judgment.
    Without this deposition testimony, there was not a sufficient basis in
    the record for a reasonable factfinder to conclude that the Chevron
    night supervisor knew that an injury to Helf was virtually certain to
    occur. For reasons identified by the district court, I would affirm the
    decision granting summary judgment to Chevron even absent an
    election of remedies defense.
    44
    

Document Info

Docket Number: Case No. 20130700

Judges: Durham, Durrant, Parrish, Toomey

Filed Date: 9/3/2015

Precedential Status: Precedential

Modified Date: 3/2/2024

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