Bagley v. Bagley

This opinion is subject to revision before final
publication in the Pacific Reporter

2016 UT 48

IN THE

SUPREME COURT OF THE STATE OF UTAH

BARBARA BAGLEY, as the sole heir of
the deceased BRADLEY M. VOM BAUR;
and BARBARA BAGLEY, as personal
representative of the estate of
BRADLEY M. VOM BAUR,
Respondent,
v.
BARBARA BAGLEY,
Petitioner.

No. 20150182
Filed October 27, 2016

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake
The Honorable Paul G. Maughan
No. 130903840

Attorneys:
Peter H. Christensen, Jennifer R. Carrizal, Kathryn T. Smith,
Salt Lake City, for petitioner
Reid Tateoka, Mark C. Rose, Cameron J. Cutler, Salt Lake City,
for respondent
David S. Bridge, Anna Nelson, Salt Lake City, for amicus
Utah Defense Lawyers Association

CHIEF JUSTICE DURRANT authored the opinion of the court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and
JUDGE KAY joined.
Having recused himself, JUSTICE PEARCE did not participate herein;
SECOND DISTRICT COURT JUDGE THOMAS L. KAY sat.
 BAGLEY v. BAGLEY
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 This case is about whether a person acting in the capacity of
sole heir and personal representative of an estate can sue him or
herself as an individual for damages under the wrongful death and
survival action statutes. Barbara Bagley, in her capacity as sole heir
and personal representative of her deceased husband‘s estate, argues
that these statutes permit her to sue herself as an individual for
negligently causing her husband‘s death. Through this suit,
Ms. Bagley hopes to secure certain insurance money for herself as
heir and to satisfy creditors of her common law husband‘s estate.
The district court dismissed her lawsuit, concluding that the plain
language of the statutes and certain public policies precluded a
person from simultaneously acting as plaintiff and defendant in a
wrongful death or survival action suit, regardless of the capacity in
which that person was acting. The court of appeals reversed,
concluding that the statutes unambiguously allow Ms. Bagley to
maintain this lawsuit. We agree with the court of appeals. We also
note that the public policies cited by the district court (policies that
Ms. Bagley in her individual capacity invokes on appeal) deal with
the separate issue of whether an heir or personal representative who
is negligent in his or her individual capacity and is permitted to sue
for damages under the wrongful death and survival action statutes
can, nevertheless, as an heir recover money paid as damages from
such a suit. That issue is not before us on appeal.
Background
¶ 2 Barbara Bagley is the common law wife of the decedent,
Bradley Vom Baur. On December 27, 2011, Ms. Bagley and
Mr. Vom Baur were travelling in a 2000 Range Rover. Ms. Bagley lost
control of the Range Rover and flipped the vehicle. Mr. Vom Baur
was thrown from the vehicle and sustained several severe injuries.
Paramedics transported Mr. Vom Baur to a local hospital for
treatment. Ten days later, on January 6, 2012, Mr. Vom Baur died
from the injuries he sustained in the accident.
¶ 3 Ms. Bagley maintained a motor vehicle insurance policy
with State Farm Insurance Company.1 To compel State Farm to
indemnify her, Ms. Bagley, in her dual capacities as sole heir and

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1 The record does not reveal whether she made a claim against
State Farm for damages under her insurance policy.

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Opinion of the Court

personal representative of the estate of Bradley Vom Baur
(Plaintiffs), brought this suit against herself as an individual
(Defendant) on June 7, 2013.2 Plaintiff Bagley, as Mr. Vom Baur‘s
heir, brought her first cause of action pursuant to Utah Code section
78B-3-106, Utah‘s wrongful death statute, alleging that Defendant
negligently caused Mr. Vom Baur‘s death, thereby depriving his sole
heir of Mr. Vom Baur‘s love, companionship, society, comfort, care,
protections, financial support, pleasure, and affection. Plaintiff
Bagley, as the personal representative of Bradley Vom Baur‘s estate,
brought her second cause of action pursuant to Utah Code section
78B-3-107, Utah‘s survival action statute, alleging that Defendant
negligently caused Mr. Vom Baur to experience pain and suffering
prior to his death, which entitles Mr. Vom Baur‘s estate to damages
such as funeral expenses and medical bills.
¶ 4 In response, Defendant filed a rule 12(b)(6) motion to
dismiss for failure to state a claim. She argued that the plain
language of the previously referenced statutes prevents a person
from suing him or herself, thereby barring Plaintiffs‘ (Bagley as both
heir and personal representative) claims. Defendant attempted to
reinforce this statutory argument by citing cases from foreign
jurisdictions that have precluded a person from bringing suit against
him or herself based on comparative negligence principles and
public policy.
¶ 5 Without a hearing, the district court by minute entry ruled
in favor of Defendant. The district court concluded that ―[t]he plain
reading of the [wrongful death] statute indicates that the
heir/personal representative and the ‗person causing the death‘
cannot be one and the same‖ and ―a wrongdoer who is the heir
and/or personal representative of decedent cannot bring a survival
action against him or herself for special or general damages.‖ The
court also concluded that the plain language of the statutes, which
preclude a wrongdoer from suing, comported with Utah‘s public
policy considerations.
¶ 6 Plaintiffs appealed, and the court of appeals reversed the
district court‘s ruling, holding that ―[t]he plain language of the

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2 Though Ms. Bagley in her dual capacities as personal
representative and heir of the estate of Bradley Vom Baur is before
us as the respondent, and Ms. Bagley in her individual capacity is
before us as the petitioner, for ease of analysis we refer to these
parties as Plaintiffs and Defendant respectively.

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Opinion of the Court
wrongful death and survival action statutes does not bar an heir or
personal representative from pursuing those causes of action even
when the heir or personal representative is the defendant
tortfeasor.‖3 The court of appeals thus concluded that ―[t]he district
court . . . erred by dismissing those causes of action.‖4 We granted a
writ of certiorari to review the court of appeals‘ decision.
Standard of Review
¶ 7 The issue on appeal is whether the court of appeals correctly
interpreted sections 78B-3-106 and 78B-3-107 of the Utah Code as
allowing a person acting in the legal capacities of an heir and
personal representative to sue him or herself as a defendant
tortfeasor for damages. The appropriate interpretation of these
statutes is a question of law that we review for correctness.5 Because
this case arises from a rule 12(b)(6) motion to dismiss, we accept the
facts set forth in the complaint as true.6 This court has jurisdiction
over this matter pursuant to Utah Code section 78A-3-102(3)(a).
Analysis
¶ 8 The court of appeals correctly concluded that the wrongful
death statute and the survival action statute allow a person to act as
an heir or personal representative to sue him or herself as an
individual defendant for damages. Contrary to Defendant‘s
argument, interpreting the statutes in this manner does not lead to a
result so overwhelmingly absurd that we must (pursuant to our
absurdity doctrine) modify the statutory language to prevent such a
lawsuit. Further, we decline Defendant‘s invitation to look beyond
the plain language of the statutes to identify the legislature‘s intent
in relation to the statutes. The statutes unambiguously apply to the
circumstances of this case and permit Plaintiffs to sue Defendant.
Public policies and related statutes cited by Defendant speak more
directly to the separate issue of whether a defendant tortfeasor who
is permitted to bring suit as an heir or personal representative of an
estate can recover insurance money paid as damages in a wrongful
_____________________________________________________________

3 Bagley v. Bagley, 2015 UT App 33, ¶ 19, 344 P.3d 655.
4 Id.
5Dahl v. Dahl, 2015 UT 79, ¶ 155, --- P.3d --- (citing Baird v. Baird,
2014 UT 08, ¶ 16, 322 P.3d 728).
6 Gregory v. Shurtleff, 2013 UT 18, ¶ 8, 299 P.3d 1098.

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Opinion of the Court

death or survival action suit. This is a question we do not reach on
this appeal. As we discuss below, Defendant‘s failure to distinguish
between these separate issues—the first, an issue of statutory
interpretation; the second, an issue of ultimate recovery of
damages—has caused unnecessary confusion in her arguments. We
therefore distinguish between these issues, affirming the court of
appeals‘ decision while remanding to permit further litigation on the
issue of recovery.
I. Neither the Wrongful Death Statute nor the Survival Action
Statute Precludes a Person Acting in the Capacity of an Heir or
Personal Representative from Suing Him or Herself as an Individual
for Negligently or Wrongfully Causing a Decedent‘s Injury or Death
¶ 9 Defendant argues that the plain language of Utah‘s
wrongful death statute (Utah Code section 78B-3-106) and survival
action statute (Utah Code section 78B-3-107) precludes an heir or
personal representative from bringing suit against him or herself for
damages. Plaintiffs argue that neither statute precludes a person
from simultaneously acting as a plaintiff heir or personal
representative and defendant tortfeasor. Like the court of appeals,
we agree with Plaintiffs. The literal language of the aforementioned
statutes permits a lawsuit like the one currently before this court.
¶ 10 The ―primary objective‖ of statutory interpretation ―is to
ascertain the intent of the legislature.‖7 Since ―‗[t]he best evidence of
the legislature‘s intent is the plain language of the statute itself,‘ we
look first to the plain language of the statute.‖8 In so doing, ―[w]e
presume that the legislature used each word advisedly.‖9 We also
―‗presume[] that the expression of one [term] should be interpreted
as the exclusion of another[,]‘ . . . . [thereby] presuming all omissions
to be purposeful.‖10 When we can ascertain the intent of the
legislature from the statutory terms alone, ―no other interpretive

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7 Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d
984 (citation omitted).
8 Id. (alteration in original) (citation omitted).
9Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266
P.3d 751 (citation omitted).
10 Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267
P.3d 863 (first and second alterations in original) (citation omitted).

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Opinion of the Court
tools are needed,‖ and our task of statutory construction is typically
at an end.11
¶ 11 This case requires us to interpret two related statutes: the
wrongful death and survival action statutes. Plaintiff as heir seeks
damages under Utah‘s wrongful death statute for the loss of
Mr. Vom Baur‘s love, companionship, society, comfort, care,
protections, financial support, pleasure, and affection. That statute
provides, in pertinent part,
Except as provided in Title 34A, Chapter 2, Workers‘
Compensation Act, when the death of a person is
caused by the wrongful act or neglect of another, his
heirs, or his personal representatives for the benefit of his
heirs, may maintain an action for damages against the
person causing the death, or, if the person is employed by
another person who is responsible for his conduct, then
against the other person.12
Similarly, Plaintiff as personal representative sues Defendant for
damages caused by the ―pain and suffering‖ that Mr. Vom Baur
experienced ―prior to his death.‖ The survival action statute
provides that
[a] cause of action arising out of personal injury to a
person, or death caused by the wrongful act or
negligence of another, does not abate upon the death of
the wrongdoer or the injured person. The injured person,
or the personal representatives or heirs of the person who
died, has a cause of action against the wrongdoer or the
personal representatives of the wrongdoer for special
and general damages, subject to Subsection (1)(b).13

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11 Id. ¶ 15 (citation omitted).
12 UTAH CODE § 78B-3-106(1) (emphases added).
13 Id. § 78B-3-107(1)(a) (emphases added). The survival action
statute has since been amended. It now provides that ―[a] cause of
action arising out of a personal injury to a person, or death caused by
the wrongful act or negligence of a wrongdoer, does not abate upon
the death of the wrongdoer or the injured person.‖ Id.(2014)
(emphasis added). Neither Defendant nor Plaintiffs argue that this
amendment is significant to our legal analysis.

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Defendant, in response, propounds duplicate arguments with
respect to each statute in an attempt to show that the plain language
prevents Plaintiffs‘ lawsuit.
¶ 12 Defendant first argues that the legislature employed the
term ―of another‖ in both statutes to exclude negligent heirs or
negligent personal representatives from acting as plaintiffs in a
wrongful death or survival action suit. Next, Defendant argues that
both statutes place the person who can sue for damages in a category
that is exclusive from the person against whom suit can be brought,
expressing a legislative intent to require different persons to act as
plaintiff and defendant. We address and reject each of Defendant‘s
arguments, concluding that the plain language of the wrongful death
and survival action statutes does not prevent a person who is acting
in the legal capacity of heir or personal representative from suing
him or herself (in an individual capacity) for negligently causing a
decedent‘s injury or death.
¶ 13 As noted, Defendant first asks us to read ―of another‖ in
both the wrongful death and survival action statutes to modify
―heirs‖ (wrongful death statute) and ―personal representative‖
(survival action statute) in such a way to mean that the person
against whom suit is brought must be someone other than the ―heir‖
and ―personal representative.‖ This reading would distort the
grammatical structure and meaning of both statutes.
¶ 14 Interpreting the wrongful death statute, the court of appeals
persuasively observed:
the absence of punctuation marks separating ‗death of
a person‘ from ‗of another‘ signifies that the two are
connected and that they are separate from the other
clauses in the statute. Plainly read, [the wrongful death
statute] uses the phrase ‗of another‘ to mean a person
other than the decedent. This reading evidences a
legislative intent to exclude situations in which the
decedent‘s own wrongful act or neglect caused his
death.14
This interpretation is supported by the language and structure of the
wrongful death statute and this court‘s precedent.15 In fact, to
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14 Bagley v. Bagley, 2015 UT App 33, ¶ 10, 344 P.3d 655.
15See Van Wagoner v. Union Pac. R.R. Co., 186 P.2d 293, 303 (Utah
1947) (interpreting the predecessor to the current wrongful death
(Continued)
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Opinion of the Court
achieve Defendant‘s recommended interpretation, we would need to
read the wrongful death statute as follows: ―when the death of a
person is caused by the wrongful act or neglect of [someone other
than his or her heirs or personal representatives], his heirs . . . may
maintain an action for damages against the person causing the
death[.]‖ This we cannot do. Accordingly, we reject Defendant‘s
attempt to interpret ―of another‖ to preclude the type of wrongful
death suit at issue here.
¶ 15 The survival action statute would be similarly distorted
were we to read ―of another‖ in the way Defendant recommends. In
fact, to ensure that ―of another‖ modifies ―personal representative,‖
we would need to copy ―of another‖ and paste it into the second
sentence of the statute. Again, as the court of appeals aptly observed:
―‗of another‘ does not appear in the same sentence as the list of
people [personal representative included] who may bring a cause of
action.‖16 We cannot read the statute in this manner to prevent
Ms. Bagley acting in the distinct legal capacity of personal
representative plaintiff from suing herself in her individual capacity
as a defendant. As with the wrongful death statute, the term ―of
another‖ modifies the injured decedent to exclude a survival action
suit in situations where the decedent ―solely or proximately
contributes negligently to his own [injury or] death.‖17 Defendant‘s
reliance on ―of another‖ to achieve her desired reading of these
statutes is untenable.
¶ 16 Defendant‘s second argument focuses on the categories of
plaintiffs and defendants that each statute establishes. Under the
wrongful death statute, a decedent‘s ―heirs . . . may maintain an
action for damages against the person causing the death.‖18 Similarly,
under the survival action statute, ―[a] personal representative[] . . . of
the person who died, has a cause of action against the wrongdoer.‖19
As an initial matter, Defendant finds the term ―against‖ in both
statutes significant. This single term, Defendant argues, expresses
the legislature‘s intent that ―the interests of the . . . plaintiff be

statute to preclude recovery ―where the deceased either solely or
proximately contributes negligently to his own death‖).
16 Bagley, 2015 UT App 33, ¶ 13.
17 Van Wagoner, 186 P.2d at 303 (interpreting the predecessor to
the current wrongful death statute).
18 UTAH CODE § 78B-3-106(1) (emphases added).
19 Id. § 78B-3-107(1)(a) (emphases added).

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adverse to the interests of the . . . defendant.‖ When the defendant
and plaintiff in a wrongful death or survival action suit are the same
person, Defendant contends that ―there are no adverse interests and
therefore, the two sides of litigation cannot actually be ‗against‘ one
another.‖
¶ 17 Defendant next focuses on the statutory distinction between
―heirs‖ and ―personal representatives,‖ on the one hand, and ―the
person causing the death‖ and ―the wrongdoer,‖ on the other. She
claims that ―the legislature intentionally used different and distinct
phrases to individually define the scope of individuals entitled to
bring a wrongful death [or survival action] claim from the scope of
individuals against whom a wrongful death [or survival action]
claim can be asserted.‖ In other words, these categories of plaintiffs
and defendants are mutually exclusive.
¶ 18 We find these arguments unpersuasive. First, Defendant‘s
argument that ―against‖ evinces the legislature‘s intent that plaintiffs
and defendants be adverse, which therefore requires separate
persons to act as plaintiff and defendant, overlooks the fact that in
this case Ms. Bagley acts in distinct legal capacities. These legal
capacities ensure adverseness. Ms. Bagley as heir and personal
representative is incentivized to diligently litigate to obtain money
for Mr. Vom Baur‘s heir and estate. Ms. Bagley as tortfeasor
defendant is likewise incentivized to diligently litigate because a
failure to cooperate with her insurer in mounting a defense would
breach the insurance agreement and absolve her insurer of any
obligation to pay insurance money as damages in this suit. Though
the statutes require adverseness, that requirement is met here
because of the distinct legal capacities inhabited by Ms. Bagley. A
different person acting as plaintiff and defendant is not necessary in
this case.
¶ 19 We also find Defendant‘s mutual exclusivity argument
unpersuasive. In the wrongful death statute, the terms ―heirs‖ and
―the person causing the death‖ do not exclude each other. The
statute defines ―heir[]‖ to include a decedent‘s spouse, children,
natural parents, adoptive parents, or financially dependent
stepchildren in their minority.20 The term ―the person causing the
death,‖ though not statutorily defined, straightforwardly means a
person who actually and proximately caused the death of the

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20 Id. § 78B-3-105.

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Opinion of the Court
decedent.21 The former term, ―heir,‖ can, therefore, logically include
the latter term, ―the person causing the death,‖ such that an heir, like
Ms. Bagley, could be the person who caused the decedent‘s death.
¶ 20 Similarly, in the survival action statute, the categories
―personal representative[]‖ and ―the wrongdoer‖ are not mutually
exclusive. The first category is broad enough to logically include the
second category. A personal representative who wrongly injures the
decedent can inhabit the roles of both plaintiff and defendant under
the statute. Neither statute employs mutually exclusive categories.
¶ 21 Accordingly, we reject Defendant‘s interpretations of the
wrongful death and survival action statutes as untenable. Neither
―of another,‖ ―against,‖ nor discrete categories of plaintiffs and
defendants evinces legislative intent to prevent a person, acting as an
heir or personal representative, from suing him or herself as an
individual for negligently causing a decedent‘s injury or death.
These statutes simply do not require a plaintiff to be a different
person than the defendant.22

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21 The term ―the person causing the death‖ appears to have an
antecedent in the statute, namely, ―of another.‖ See supra ¶ 14; see also
Bagley, 2015 UT App 33, ¶ 10 (―Plainly read, [the wrongful death
statute] uses the phrase ‗of another‘ to mean a person other than the
decedent. This reading evidences a legislative intent to exclude
situations in which the decedent‘s own wrongful act or neglect
caused his death.‖).
22 Section 106.5 of the same chapter supports our reading of
sections 106 and 107. That chapter allows a ―presumptive personal
representative‖ to present a policy claim to an insurer forty-five days
after the decedent‘s death when ―no application or petition for the
appointment of a personal representative is pending or has been
granted in any jurisdiction.‖ UTAH CODE § 78B-3-106.5(2)(a)(iii). The
chapter defines ―presumptive personal representative‖ to exclude
―the spouse of the decedent . . . alleged to have contributed to the
death of the decedent.‖ Id. § 78B-3-106.5(1)(a). In other words, the
statute allows a presumptive personal representative, which cannot
include a spouse who contributed to a decedent‘s death, to submit a
claim to an insurer when no personal representative has yet been
appointed at probate. Significantly, we cannot find any provision in
Utah‘s probate code that precludes a spouse who contributed to the
decedent‘s death from being appointed as a personal representative.
See id. § 75-3-203. Thus, under section 106.5 the legislature
(Continued)
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Opinion of the Court

¶ 22 While we have concluded that Defendant‘s plain language
arguments fail, that does not end our analysis. She asks us, in the
alternative, to employ our absurdity doctrine to reform the plain
language of the statutes to prevent the same person from
simultaneously acting as plaintiff and defendant under the statutes.
We address this request below, distinguishing between our
absurdity doctrine and our absurd consequences canon. We
ultimately conclude that permitting a tortfeasor defendant to also act
as a plaintiff heir or personal representative does not lead to an
absurd result of sufficient magnitude to justify our rewriting the
statutes to read as Defendant prefers.
II. The Wrongful Death and Survival Action Statutes Do Not
Merit Revision Under Our Absurdity Doctrine
¶ 23 As we concluded above, the plain language of both the
wrongful death and survival action statutes permit a person acting
as an heir or personal representative to sue him or herself as an
individual for damages. Defendant asks us to revise both statutes to
avoid this plain language result. In this request, she is accompanied
by amicus curiae Utah Defense Lawyers Association. In response,
Plaintiffs argue that (1) Defendant failed to preserve this absurdity
argument; (2) even if she did preserve the argument, she
misconstrues the absurdity analysis, which applies only where a
statute is ambiguous; and (3) even if the doctrine applies, a rational
legislative purpose prevents this court from rewriting the statute to
preclude an heir or personal representative from bringing suit
against the same person in his or her capacity as an individual
tortfeasor.
¶ 24 We reject Plaintiffs‘ preservation argument. We also take
this opportunity to clarify the difference between the absurd
consequences canon (which Plaintiffs invoke) and the absurdity

contemplated that a spouse who contributed to the decedent‘s death
and who could seek appointment as the personal representative,
nevertheless could not act as a presumptive personal representative
for the limited purposes of making insurance claims prior to the
appointment. The fact that the legislature has not similarly excluded
spouses who contribute to the decedent‘s death from suing as an
―heir‖ or ―personal representative‖ under sections 106 and 107—
despite the fact that those sections were amended subsequent to the
enactment of section 106.5—suggests that we should not create such
an exclusion ourselves.

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Opinion of the Court
doctrine (which Defendant invokes). The former interpretive tool
applies to ambiguous statutes; the latter, to unambiguous statutes
that lead to an absurd result. We ultimately agree with Plaintiffs: a
possible, rational legislative purpose requires us to refrain from
rewriting the statutes in the way Defendant recommends.
¶ 25 On appeal, Defendant devotes several pages of briefing to
argue that ―[t]he Court of Appeals‘ interpretation of [the wrongful
death and survival action statutes] works an absurd result and[,]
therefore, should be reversed.‖ Plaintiff claims, in response, that
Defendant ―waived her absurd result argument by failing to assert,
plead, argue, or brief the issue before the district court and the court
of appeals.‖
¶ 26 While Plaintiff correctly observes that Defendant did not
specifically raise an absurd results argument below, this is ultimately
immaterial for one simple reason: Defendant‘s absurd result
argument does not raise a wholly new issue. 23 Instead, she offers an
argument in support of a particular issue already preserved on
appeal. As noted above, the issue on appeal is whether the wrongful
death and survival action statutes allow an heir or personal
representative to stand in the shoes of a tortfeasor defendant. Where
the best reading of these statutes is directly before us on appeal, an
absurdity analysis is an integral extension of our interpretive task.
Our failure to entertain Defendant‘s absurdity argument may lead us

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23 Gressman v. State, 2013 UT 63, ¶ 45, 323 P.3d 998 (entertaining
an argument that the State fully articulated for the first time on
appeal since ―[i]ssues must be preserved, not arguments for or
against a particular ruling on an issue raised below‖); see also Jacob v.
Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535 (declining to entertain
plaintiff‘s argument offered for the first time on appeal that the Anti-
SLAPP Act violated the open courts clause of the Utah Constitution
because the relevant issue on appeal was whether the Anti-SLAPP
Act shielded a newspaper editor‘s speech); Patterson v. Patterson,
2011 UT 68, ¶ 13, 266 P.3d 828 (noting that the because ―preservation
requirement is self-imposed and is therefore one of prudence rather
than jurisdiction[,] . . . we [retain] wide discretion when deciding
whether to entertain or reject matters that are first raised on
appeal‖).

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to misconstrue both statutes. Accordingly, we reach this argument to
fully address the issue on appeal.24
¶ 27 Plaintiff argues that even if Defendant preserved the
absurdity doctrine argument, that doctrine ―should only be invoked
in situations [w]hen statutory language plausibly presents the court
with two alternative readings.‖ This is incorrect. ―Our caselaw
recognizes two different interpretive tools concerning absurdity.‖25
The first—the absurd consequences canon—―merely resolve[s] an
ambiguity by choosing ‗the reading that avoids absurd results.‘‖26
The second—the absurdity doctrine—―reform[s] unambiguous
statutory language‖ where the language would lead to an absurd
result.27 In this case, Defendant asks us to apply the absurdity
doctrine to interpret the wrongful death and survival action statutes
contrary to their plain language to avoid an absurd result.
¶ 28 This court has developed a narrow, exacting standard for
determining whether to apply the absurdity doctrine and read a
statute contrary to its plain meaning. In particular, this court will not
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24 Patterson, 2011 UT 68, ¶ 14 (―Utah appellate courts have used
the words ‗issue,‘ ‗claim,‘ ‗argument,‘ and ‗matter‗ almost
interchangeably when stating our preservation rule.‖); Ong Int’l
(U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 n.31 (Utah 1993)
(―Defendants contend that we should reach this and other new
points raised for the first time on appeal because they are really new
arguments as opposed to new issues. We decline to honor such a
distinction. Our concern is whether an argument was addressed in
the first instance to the trial court.‖).
25Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 46, 357 P.3d 992
(Durrant, C.J., concurring).
26 Id. ¶ 47 (Durrant, C.J., concurring) (citation omitted).
27 Id. ¶ 46 (Durrant, C.J., concurring). We note that Plaintiffs lifted
their absurd result canon test from Encon Utah, LLC v. Fluor Ames
Kraemer, LLC, 2009 UT 7, ¶ 73, 210 P.3d 263. Significantly, Encon
quoted a footnote from State ex rel. Z.C. in which we distinguished
the absurdity doctrine from ―[a] related but separate canon of
statutory interpretation.‖ 2007 UT 54, ¶ 15 n.5, 165 P.3d 1206. That
related canon of statutory interpretation—the absurd consequences
canon—―states that when the statutory language plausibly presents
the court with two alternative readings, we prefer the reading that
avoids absurd results.‖ Id.

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Opinion of the Court
apply the absurdity doctrine unless ―the operation of the plain
language . . . [is] so overwhelmingly absurd that no rational
legislator could have intended the statute to operate in such a
manner.‖28 This standard is satisfied only if the legislature could not
reasonably have intended the result.29
¶ 29 If we determine that the plain language leads to an absurd
result, we first consult the express purpose of the statute 30 or, absent
a statement of statutory purpose, legislative history31 to ensure that
an absurd result was not intended by the legislature before we apply
the doctrine to reform a statute. After all, ―the guiding star of the
absurd results doctrine is the intent of the pertinent legislative

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28 Utley, 2015 UT 75, ¶ 48 (Durrant, C.J., concurring); cf. State ex
rel. Z.C., 2007 UT 54 ¶ 13, 165 P.3d 1206 (―Other than the directive
that a result must be so absurd that the legislative body which
authored the legislation could not have intended it, there is no
precise legal standard to determine what legislatures would consider
to be an absurd result.‖ (emphasis added)).
29 See Utley, 2015 UT 75, ¶ 63 (Durrant, C.J., concurring); cf.
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 30, 267 P.3d 863
(concluding that the statutory result was not ―so absurd that the
legislative body which authored the legislation could not have
intended it‖ because ―we believe the Legislature could reasonably
have intended to require parties to use means less intrusive than
building a permanent road to transport oil and gas across private
property‖(citation omitted)); cf. Pub. Citizens v. U.S. Dep’t of Justice,
491 U.S. 440, 470 (1989) (Kennedy, J., concurring) (concluding that
because ―Congress could not possibly have intended‖ a ―patently
absurd consequence[]‖ created by ―the plain language of the
statute,‖ the court ―need not apply the language in such a fashion‖
(citations omitted)).
30 See Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 28, 163 P.3d 615
(concluding that a party‘s interpretation of the prejudgment interest
statute ―leads to an absurd result that controverts the express
purposes of the statute‖).
31 State ex rel. Z.C., 2007 UT 54, ¶ 21 (―Although we generally do
not consult legislative history where the meaning of the statute is
clear, after finding that the plain meaning has been applied in an
absurd manner, we seek to confirm that the absurd application was
indeed unintended by the legislature.‖).

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Opinion of the Court

body.‖32 If either the statutory purpose or legislative history reveal
that the legislature did not intend the absurd result, we will employ
the absurdity doctrine only when there is a ―non-absurd reading that
could be achieved by modifying the enacted text in relatively simple
ways.‖33
¶ 30 In this case, neither the wrongful death nor the survival
action statutes merit modification under the absurdity doctrine
because the legislature could have reasonably intended to allow a
person acting as an heir or personal representative to sue him or
herself as an individual tortfeasor. Under the wrongful death statute,
allowing an heir to sue him or herself as an individual for damages
may benefit other heirs.34 Similarly, under the survival action statute,
permitting a personal representative to sue him or herself as an
individual for survivor damages may benefit creditors of the estate.
The legislature may well have reasoned that courts should allow an
heir or personal representative to sue him or herself for the benefit of
creditors or heirs when no other party is willing to maintain suit.
Because the legislature could have intended to allow such a lawsuit
under these statutes, we cannot employ our absurdity doctrine to
rewrite the statutes in this case.35
¶ 31 Defendant argues against this conclusion by citing several
Utah cases that stand for the proposition that a person cannot sue
him or herself. But none of these cases rely on that proposition to
_____________________________________________________________
32 Id. ¶ 12.
33Cox v. Laycock, 2015 UT 20, ¶ 74, 345 P.3d 689 (Lee, J.,
concurring) (citation omitted).
34 See Switzer v. Reynolds, 606 P.2d 244, 246 (Utah 1980) (noting
that the wrongful death statute provides a single cause of action, and
―[w]hether the action be prosecuted by the personal representative
or one or more of the heirs, it is for the benefit of all the heirs, and all
heirs are bound thereby‖).
35 Though we recognize that this case involves a single heir, we
cannot rewrite the statute ―in relatively simple ways,‖ Cox, 2015 UT
20, ¶ 74, to preclude suits in which there is a single heir while
permitting suits in which there is more than one heir. When we
revise a statute that leads to an absurd result, any revision will not
merely affect the party currently before the court, but it will also
impact future litigants. We must remain sensitive to these
consequences whenever we employ our absurdity doctrine.

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Opinion of the Court
rewrite a statute under the absurdity doctrine.36 Where the
legislature could have rationally intended just such a suit in the
wrongful death and survival action contexts, we cannot modify the
statutes. Relatedly, the amicus curiae Utah Defense Lawyers
Association offers several arguments to show the practical
difficulties that may arise if heirs or personal representatives can sue
themselves for tortious conduct. These practical difficulties are
surmountable and do not rise to the height of an absurd result that
would permit revision of the statutes.37 Absent an overwhelmingly
absurd result, we will not modify the statutes.

_____________________________________________________________
36 See, e.g., Forrer v. Reed, 560 P.2d 1113, 1115 (Utah 1977) (noting
that even though the statute of limitations typically begins to run for
minors when a guardian is appointed, in this case, the guardian
would need to sue herself, ―an illogical and untenable position‖);
Fehringer v. Commercial Nat’l Bank of Ogden, 64 P. 1108, 1109 (Utah
1901) (citing to a California case that precluded an executor, who
was also the fraudulent grantee, from suing herself).
37 The Association submitted novel arguments about the impact
this case could have on our adversarial system and our Rules of
Professional Conduct. The Association argues, inter alia, that this
lawsuit distorts the attorney-client relationship by creating a
concurrent conflict of interest because ―defense counsel‘s
representation of the client as the defendant is directly adverse to
defense counsel‘s representation of that same person who is also the
plaintiff.‖ This concurrent conflict, the Association further argues,
strains an attorney‘s ability to communicate with his or her client,
because ―a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the consent of
the other lawyer.‖ (quoting UTAH R. PROF‘L CONDUCT 4.2(a)).
Conversely, communications in the other direction, from client to
attorney, are also hampered, according to the Association, because
the client knows that anything she reveals will be used against her.
Relatedly, the Association raises concerns about jury confusion and
the ability of an attorney to cross-examine his own client.
These arguments are not without merit but they must ultimately
fail. This suit does not create a concurrent conflict. Plaintiffs and
Defendant act in different legal roles. Any concern that Ms. Bagley
will withhold information from defense counsel that is adverse to
the estate‘s recovery is tempered by Ms. Bagley‘s requirement to
cooperate with her insurer under their insurance agreement and the
(Continued)
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Opinion of the Court

¶ 32 Defendant propounds one final set of arguments to urge
dismissal of the lawsuit before this court. She specifically encourages
us to look beyond the plain language of the statutes to identify
legislative intent—which she locates in certain statutes, including the
Liability Reform Act (LRA), and the public policy articulated by
other states. These legal authorities, Defendant argues, show that the
legislature did not intend a negligent heir or personal representative
to recover under the wrongful death and survival action statutes.
Below, we address and reject these arguments, noting that they rest
on a misreading of our precedent and fail to directly address the
issue before this court on appeal. In particular, Defendant‘s
legislative intent and public policy arguments do not address
whether the statutes at issue in this case permit the suit now before
us. Instead, her arguments address whether a plaintiff heir or
personal representative, who is also a tortfeasor defendant, may
recover wrongful death or survival action damages. That is an issue
that the parties and district court may address on remand.
III. Related Utah Statutes and Public Policies Cited by Defendant Do
Not Evince a Legislative Intent to Preclude a Negligent Heir or
Negligent Personal Representative from Suing for Damages Under
the Wrongful Death or Survival Action Statutes
¶ 33 Citing Cox v. Laycock,38 Defendant claims that ―‗when a
statute is silent regarding particular circumstances‘ the appellate
court ‗must determine the best rule of law to ensure that the statute
is applied uniformly.‘‖ To adopt the best rule of law, Defendant
argues the court must ―look outside the plain language of the statute
to determine the intent of the legislature.‖ Accordingly, Defendant
cites us to related Utah statutory law—including Utah‘s Slayer

district court‘s inherent powers to manage discovery and ensure that
defense counsel obtains relevant, probative evidence necessary to
defend against Plaintiffs‘ causes of action. Similarly, concerns about
jury confusion and cross-examination at trial are alleviated by the
district court‘s ability to oversee the prosecution of this lawsuit in a
manner that will mitigate these issues. Though this lawsuit raises
novel issues regarding the attorney-client relationship and the
prosecution of a lawsuit, these issues are manageable and do not
create an overwhelming absurdity that requires us to rely on our
absurdity doctrine to reform the wrongful death and survival action
statutes.
38 2015 UT 20, ¶ 42, 345 P.3d 689.

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Opinion of the Court
Statute,39 the LRA,40 and a motor vehicle insurance provision in
Utah‘s Insurance Statute41—to show ―that it was not the intent of the
Utah Legislature to create a wrongful death and/or survival cause of
action for a negligent beneficiary.‖ Defendant reinforces this
argument by pointing us to relevant public policies articulated by
our sister jurisdictions.
¶ 34 We reject Defendant‘s legislative intent and public policy
argument as it relies on an improper understanding of the rule of
statutory interpretation set forth in Cox. In that case, voters filed a
petition under Utah Code sections 20A-4-402 and 20A-4-403 to
contest election results.42 The district court ruled against the
election‘s validity and ordered a new election.43 The lieutenant
governor filed a petition for extraordinary writ challenging the
district court‘s order.44 This court affirmed the district court‘s ruling
to set aside the election, but reversed its order to hold a new

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39 Utah‘s slayer statute provides that ―[a]n individual who
commits a disqualifying homicide of the decedent forfeits all benefits
under this chapter with respect to the decedent‘s estate, including an
intestate share, an elective share, an omitted spouse‘s or child‘s
share, a homestead allowance, exempt property, and a family
allowance. If the decedent died intestate, the decedent's intestate
estate passes as if the killer disclaimed his intestate share.‖ UTAH
CODE § 75-2-803(2).
40 The LRA provides the following: ―A person seeking recovery
may recover from any defendant or group of defendants whose
fault, combined with the fault of persons immune from suit and
nonparties to whom fault is allocated, exceeds the fault of the person
seeking recovery prior to any reallocation of fault made under
Subsection 78B-5-819(2).‖ UTAH CODE § 78B-5-818(2).
41Utah places the following limitation on a recovery under motor
vehicle insurance: ―Any insurer issuing personal injury protection
coverage under this part may only exclude from this coverage
benefits: . . . (iii) to any injured person, if the person‘s conduct
contributed to his injury: (A) by intentionally causing injury to
himself; or (B) while committing a felony.‖ UTAH CODE § 31A-22-
309(2)(a)(iii).
42 Cox, 2015 UT 20, ¶ 6.
43 Id. ¶¶ 8–9.
44 Id.

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Opinion of the Court

election.45 We noted that the statutes provided a procedure to annul
a primary election, but did not include a procedure to fill an office
thus annulled.46 From this, we ultimately concluded that the
legislature left an unintentional ―gap‖ in the statutes—a gap we
filled by consulting ―analogous provisions within the election
code.‖47
¶ 35 This case unquestionably presents a different situation.
Neither the wrongful death nor the survival action statutes contain
gaps that the legislature did not intend to create. Both statutes
broadly permit an heir or personal representative to sue a
wrongdoer for damages.48 Though they do not specifically address
whether a person can act simultaneously in different legal capacities
as a plaintiff heir or personal representative and individual
defendant, they are written in terms that sufficiently encompass and
permit such a lawsuit.
¶ 36 Defendant applies Cox to this case in a manner that fails to
recognize the difference between a statutory gap and statutory
silence. In so doing, Defendant construes Cox as a judicial license to
modify a statute whenever it is ―silent regarding particular
circumstances.‖49 This approach to statutory interpretation would
grant courts robust legislative powers to ignore statutory language
in order to reach a desired result. We decline to establish such an
untenable rule. Accordingly, we distinguish the unique statutory
circumstances peculiar to Cox from those now before this court.
Absent a glaring gap, we will not supply further refinements to the
wrongful death and survival action statutes in a manner consonant
with ―the legislature‘s probable intent,‖ as Defendant recommends.
_____________________________________________________________
45 Id. ¶¶ 35, 39.
46 Id. ¶ 41.
47 Id. (―We conclude, however, that the legislature did not intend
the vacancy resulting from an annulled primary to continue in
perpetuity. We therefore look to analogous provisions within the
election code to carry out the legislature‘s intent.‖); cf. Clarkston v.
Bridge, 539 P.2d 1094, 1099–1100 (Or. 1975) (concluding that a party
could request a jury trial to determine paternity where a statute
authorized a paternity suit but failed to specify whether a party
could demand a jury).
48 Supra ¶ 11.
49 Cox, 2015 UT 20, ¶ 42.

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Opinion of the Court
¶ 37 For this reason, we will not rely on the Slayer Act, the LRA,
or any other related statute to speak more specifically for the Utah
Legislature when it chose to speak in more general terms. Nor will
we consider the public policy articulated by our sister jurisdictions.
The wrongful death and survival action statutes unambiguously
allow Ms. Bagley acting as an heir and personal representative to sue
herself as an individual for damages.
¶ 38 To the extent Defendant invokes the LRA to argue that
dismissal is proper because Plaintiffs cannot recover damages, she
did not preserve this issue for appeal by raising it before the district
court.50 In her opening brief, Defendant couched this issue in terms
of statutory interpretation, arguing that the LRA, wrongful death,
and survival action statutes conflict, and that we thus cannot read the
latter statutes ―to confer a cause of action on [Plaintiffs] when that
very same cause of action is barred by comparative negligence
principles.‖ Though in form this argument is one of statutory
construction, in substance it is an invitation to apply the LRA to bar
Plaintiffs‘ suit. We decline that invitation. When the issue preserved
for appeal is the appropriate interpretation of a statute, it is one thing
to identify an inconsistency between two related statutes—one of
which was not raised before the district court—that requires
resolution through statutory interpretation on appeal. It is another
thing entirely to argue that a statute that was never brought to the
district court‘s attention and that deals with an issue not preserved
for appeal, should apply on appeal to bar recovery.51
¶ 39 And even if we construe Defendant‘s argument as one of
statutory interpretation, no conflict between the statutes at issue in
this case and the LRA exists.52 The wrongful death and survival

_____________________________________________________________
50 Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (―An issue
is preserved for appeal when it has been ‗presented to the district
court in such a way that the court has an opportunity to rule on
[it].‘‖ (alteration in original) (citation omitted)).
51 Id. ¶ 18 (deciding to rely on a statute not raised before the
district court because ―we routinely consider new authority relevant
to issues that have properly been preserved‖).
52 Though Defendant did not raise this particular argument
below, we may reach it for the same reason we reached Defendant‘s
absurdity argument: the proper interpretation of the wrongful death
and survival action statutes is before us, and harmonizing those
statutes with related legislative enactments is integral to that
(Continued)
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Opinion of the Court

action statutes create a cause of action that heirs and personal
representatives may pursue.53 By contrast, the LRA precludes ―[a]
person seeking recovery‖54 from recovering when his or her fault is
not exceeded by the combined fault of defendants, nonparties, and
parties immune from suit to whom fault is allocated.55 The former
statutes create a cause of action; the latter statute acts as a bar to
recovery in particular cases. In some cases, the LRA may bar an heir
or personal representative who is also the defendant tortfeasor from
recovering—as appears to be the case here. In other cases, the LRA
may not bar recovery—as when multiple defendants, including the
sole heir, are liable for the death of the decedent and the heir‘s fault
does not exceed the combined fault of all other actors. Accordingly,
no conflict between these statutes exists. And because the issue of
whether the LRA will apply to bar recovery here is an issue that was
not preserved for appeal, the district court should decide it in the
first instance on remand.
¶ 40 We also note that as with Defendant‘s LRA argument, her
other legislative intent and public policy arguments outlined above
fail to directly address the issue before us on appeal. We granted
certiorari on whether the court of appeals erred in holding that
sections 78B-3-106(1) and 78B-3-107 of the Utah Code do not
preclude persons in their capacities as heirs or personal
representatives from bringing suit against the same persons in their
capacities as ―person[s] causing . . . death‖ or as ―wrongdoer[s].‖ The
related statutes and foreign caselaw cited by Defendant speak to the
separate issue of whether a tortfeasor defendant who is permitted to
sue as an heir and personal representative of an estate can recover
insurance money paid out as damages in a wrongful death or

interpretive task. See supra ¶ 26; see also State v. Jeffries, 2009 UT 57,
¶ 9, 217 P.3d 265 (noting ―our duty to read and interpret statutory
provisions in harmony with other provisions in the same statute and
with other related statutes‖).
53 Supra ¶ 11.
54UTAH CODE § 78B-5-817(4) (―‗Person seeking recovery‘ means
any person seeking damages or reimbursement on its own behalf, or
on behalf of another for whom it is authorized to act as legal
representative.‖).
55 Supra ¶ 33 n.39.

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Opinion of the Court
survival action suit.56 Defendant‘s failure to distinguish between
these distinct issues—the first, an issue of statutory interpretation;
the second, an issue of whether recovery is permissible in cases like
the one before us—has caused undue confusion in her arguments.
Though we do not reach the second issue in this appeal, the parties
may raise the issue on remand.
¶ 41 For the reasons articulated above, Defendant‘s legislative
intent and public policy arguments fail. They rely on a misreading of
our precedent and speak to a separate issue, one that we do not
address. Accordingly, we conclude that, contrary to Defendant‘s
averments, the court of appeals accurately identified the legislature‘s
intent when it interpreted the plain language of the wrongful death
and survival action statutes.
Conclusion
¶ 42 For the foregoing reasons we hold that the court of appeals
did not err when it concluded that the wrongful death and survival
action statutes permit a person acting in the legal capacity of an heir
or personal representative to sue him or herself in an individual
capacity for negligently causing a decedent‘s death or injury. The
plain language of both statutes permits such a lawsuit. Further, the
literal terms of the statutes do not lead to an absurd result that
would require us to modify the statutory text. And absent a statutory

_____________________________________________________________
56 Tanski v. Tanski, 820 P.2d 1143, 1144–45 (Colo. App. 1991)
(recognizing that the jurisdiction‘s wrongful death statute permits an
heir to sue himself while concluding that public policy prevents the
heir from recovering damages); In re Chase Estate, 44 Pa. D. & C.3d
34, 40–41 (Pa. Orphans‘ Ct. 1987) (barring an heir from participating
in his wife‘s estate where the heir wrongfully caused his wife‘s
death, even though the heir‘s wife‘s mother acted as administrator of
the estate); Aetna Cas. & Sur. Co. v. Curley, 585 A.2d 640 (R.I. 1991)
(preventing an heir from maintaining suit under the jurisdiction‘s
wrongful death and survival action statutes because her wrongful
conduct caused the decedent‘s death and she was the sole
beneficiary of the decedent‘s estate); cf. Rozewski v. Rozewski, 46
N.Y.S.2d 743, 745–47 (Sup. Ct. 1944) (permitting a husband whose
negligence caused his wife‘s death to recover under the wrongful
death statute because such recovery did not violate the jurisdiction‘s
public policy).

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Opinion of the Court

gap, we will not venture beyond the plain language of the statutes to
rewrite them based upon public policy.

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