Helf v. Chevron U.S.A. Inc.

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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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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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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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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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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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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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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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.
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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.
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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.‖);
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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.
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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

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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

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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
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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.

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¶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

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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
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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.

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¶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
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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.

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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

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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).
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 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.
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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,

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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
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 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.
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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
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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
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 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
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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.
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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 . . . .‖).
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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
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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 . . . .‖).
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¶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
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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.‖).
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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.
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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