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Litigation

Utah Appellate Court Permits Plaintiff To Sue Herself

The Utah Third District Court, Salt Lake Department, recently considered the  case of Bagley v. Bagley, 2015 UT App 33, 2015 Utah App. LEXIS 32 (Utah Ct. App. 2015) , where an heir and personal representative filed a survival and wrongful death lawsuit against herself as the driver who caused a motor vehicle accident that resulted in her husband’s death. The wife sought an unspecified amount of money for damages, which included medical and funeral expenses, loss of past and future financial support, the physical pain her husband suffered before he died from his injuries, and the loss of his love and companionship. The interests of the wife as the driver in the case were represented by her insurance carrier. The case was initially dismissed after the district court, through the Hon. Paul G. Maughan, determined that the language of the wrongful death and survival action statutes prevented a tortfeasor from seeking recovery from herself.

On Feb. 12, 2015, the Utah Court of Appeals reversed and remanded that decision. In authoring the court’s 3-0 decision, Judge John A. Pearch found that the survival and wrongful death statutes, Utah Code Ann. § 78B-3-106 and Utah Code Ann. § 78B-3-107, did not bar the wife, as the heir and personal representative, from bringing these causes of action, despite  the fact that she was at fault for the accident that caused the death. The court of appeals cited to the fact that an exclusion for those who contributed to the death of a decedent under Utah Code Ann. § 78B-3-106.5 had not been adopted in the amendments to Utah Code Ann. § 78B-3-106 and Utah Code Ann. § 78B-3-107.  The court of appeals focused on the words “of another,” finding that it meant someone other than the deceased or injured person. A public policy argument was left for consideration by the Utah Legislature.

Despite arguments that the interests of the estate were being pursued, this decision has caused concern among legal analysts as to juror confusion in determining damages for a party who had caused their own damages. Courts in other states have held that allowing those at fault to recover damages would be unjust. There is no word yet as to whether an appeal to the Utah Supreme Court will be filed.

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