Bear v. Lifemap Assurance

2021 UT App 129

THE UTAH COURT OF APPEALS

TOMI BEAR,
Appellant,
v.
LIFEMAP ASSURANCE COMPANY AND
TOOELE COUNTY SCHOOL DISTRICT,
Appellees.

Opinion
No. 20200183-CA
Filed November 18, 2021

Third District Court, Toole Department
The Honorable Matthew Bates
No. 180300011

David S. Head, Attorney for Appellant
Timothy C. Houpt and Jessica P. Wilde, Attorneys
for Appellee LifeMap Assurance Company
Sean D. Reyes and Peggy E. Stone,
Attorneys for Appellee Tooele County
School District

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.

ORME, Judge:

¶1 Tomi Bear, an employee of the Tooele County School
District (the District), applied for an increase in life insurance
benefits for herself and her ailing husband (Husband) during the
District’s open enrollment period. The insurance provider,
LifeMap Assurance Company, required medical histories as part
of the application process, which Bear failed to provide. Despite
this incomplete application, due to a software glitch, for several
 Bear v. LifeMap Assurance Co.

months the District deducted premium payments corresponding
to the increased life insurance benefit Bear sought for Husband.
When Husband passed away, Bear sought to collect Husband’s
life insurance benefits. LifeMap denied Bear’s claim for the
increased benefit amount, asserting that it never received
Husband’s medical history. Bear sued LifeMap and the District
for, in relevant part, breach of contract and breach of the implied
covenant of good faith and fair dealing. All three parties moved
for summary judgment on both claims, which the district court
granted in favor of the defendants. Bear appeals, and we affirm.

BACKGROUND1

¶2 Bear was employed by the District from 1993 to 2016. As
part of her employment benefits, Bear was eligible to purchase
voluntary group life insurance coverage for herself and
Husband, which the District had contracted with LifeMap to
provide since 2012.

¶3 In 2014, the District elected to self-administer the group
life insurance policy (the Group Policy). This included gathering
applications from its employees and forwarding them to
LifeMap for underwriting. For applications that LifeMap
approved, the District calculated and gathered premium
payments from employees through payroll deductions, added its
own premium payments, and made monthly lump sum
payments to LifeMap. Under the Group Policy, the District was
precluded from collecting premium payments from an employee
unless LifeMap first approved the employee’s application. The

1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).

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 Bear v. LifeMap Assurance Co.

Group Policy further provided that a “[c]lerical error or omission
will not,” among other things, “cause an ineligible employee to
become insured.”

¶4 When making the aforementioned monthly aggregate
payments, the District did not identify the individuals whose
payroll deductions made up the lump sum to LifeMap. Instead,
LifeMap provided a “bill” template that the District was
required to fill out, which calculated the total amount of
employee premiums the District collected. LifeMap would then
review the amount collected to determine whether there was a
10% increase or decrease from the previous month. If the
discrepancy was 10% or higher, LifeMap would ask the District
to explain the reason for the change. LifeMap was not concerned
with discrepancies that were under 10% and would not contact
the District in those situations. When reporting on discrepancies
exceeding 10%, the District would typically explain the
discrepancy by informing LifeMap that employees were either
laid off or hired, or that new coverage was added. Based on the
District’s size, a 10% discrepancy would typically equate to an
amount between approximately $2,200 and $2,900 per month.
During the 2015–2016 school year, LifeMap was aware that “the
District repeatedly failed to provide all the required information
in the bill it sent each month to LifeMap,” but LifeMap did not
affirmatively act to resolve the discrepancies.

¶5 Under the Group Policy, eligible employees could apply
within 31 days of eligibility for a guaranteed issue amount for
themselves and their spouses without having to provide
evidence of insurability (EOI).2 The maximum guaranteed issue
amount was $400,000 for an employee and $50,000 for a spouse,

2. The Group Policy defines EOI as “a statement or proof of a
person’s medical history which [LifeMap] will use to determine
if the person is approved for insurance.”

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 Bear v. LifeMap Assurance Co.

for which employees could apply in increments of $10,000. A
section of the Group Policy with the heading “WHEN WE MAY
REQUIRE EVIDENCE OF INSURABILITY” stated that LifeMap
“will require Evidence of Insurability for all persons applying
for insurance” if, among other things, an employee did not apply
for the guaranteed issue amount within the 31-day window,
wished to increase coverage, or wished to apply for coverage
over the guaranteed issue amount for themselves or their
spouse. The Group Policy provided that “[a]pproval of coverage
is subject to [LifeMap’s] review of [the employee’s] Evidence of
Insurability.” It further clarified that “[i]f Voluntary Life
insurance is approved, [the employee] will receive a
Confirmation Statement verifying the amount(s) and Effective
Date(s) of coverage.”

¶6 Employees could make changes to their benefits once a
year during an open enrollment period. During the 2015–2016
school year, the District implemented a new software program,
iVisions, for employees to make benefit elections during the
open enrollment period. During that time, Bear, using the new
software program, requested an increase in the voluntary life
insurance policies for herself and Husband from $10,000 to
$300,000. After checking the corresponding box to make that
request, a pop-up box appeared displaying the following
message:

REMINDER: If you are a new enrollee or
increasing coverage, you MUST complete and
submit a Health Statement (EOI) to the Benefits
Department for approval from LifeMap.

To print out a form, please click the “Previous”
button below to find the LifeMap Health Statement

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 Bear v. LifeMap Assurance Co.

link or you may visit the Information Center
located under Employee Resources.[3]

To move to the next step, applicants were required to click a
button labeled “OK.” Bear did not remember seeing the link to
the EOI and did not complete and submit the EOI as part of her
request for an increase in life insurance benefits for her and
Husband. After Bear submitted the request, iVisions generated a
“Benefit Enrollment Confirmation Statement” listing the benefits
Bear had elected for the 2015–2016 school year, including an
increase in voluntary life insurance benefits in the amount of
$300,000 for herself and Husband. The statement also indicated
that Bear was authorizing the District to make payroll
deductions for the selected benefits.

¶7 At the time of Bear’s selection, Husband suffered from
several physical ailments, including type II diabetes, stage IV
chronic kidney disease, end-stage renal failure, coronary artery
disease, and hypertension. Bear would have been required to
disclose these medical conditions in an EOI. And it is

3. The screenshot of the iVisions pop-up box in the record is
from the 2018–2019 open enrollment period. Although Bear
points out this fact, she does not assert that the contents of the
pop-up inaccurately represented what Bear saw in iVisions in
2015. Instead, she asserts that she “does not remember all of the
language that she saw online when she enrolled for the [increase
in life insurance] benefits.” In any event, an email the District’s
benefits specialist sent to a LifeMap representative dated March
23, 2016, stated, “During open enrollment when employees
reached the screen for voluntary life [insurance], they had the
option to elect additional coverage. Regardless of what they
chose, the next screen to pop up is a message that states If you are
applying for additional coverage you must print out a Health
Statement (EOI) HERE.”

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 Bear v. LifeMap Assurance Co.

undisputed that LifeMap would have declined the requested
increase based on Husband’s medical history if Bear’s
application had included an accurate EOI. Indeed, the Vice
President of Risk Management at LifeMap testified that
Husband “would have been declined, absolutely.”

¶8 Bear does not recall LifeMap notifying her that her
request for an increase in voluntary life insurance benefits had
been approved as contemplated by the terms of the Group
Policy. LifeMap asserted that it “had no information or
knowledge concerning any purported application for $300,000 in
life insurance for [Husband] prior to [his] death and sent no
notice to [Bear] or any communication at all to [Bear] on this
subject prior to [Husband’s] death.”

¶9 In August 2015, as part of the process of closing the open
enrollment period and preparing for the September 1 effective
date, the District’s insurance benefits specialist (Benefits
Specialist) saw that the system was set to make deductions from
Bear’s payroll for two $300,000 life insurance policies, which
LifeMap had not approved. Benefits Specialist explained that the
system updated employees’ benefits based on the requests
employees made during open enrollment and that she would
later have to manually change the benefit amounts to whatever
was actually approved. Accordingly, because Bear had not
submitted EOIs for herself and Husband and because LifeMap
had not approved an increase to $300,000 for either person,
Benefits Specialist manually changed the policy amount back to
the original $10,000 in both policies. But when changing the
policy amount for Husband, Benefits Specialist neglected to
include a dollar sign in front of the 10,000 figure. Benefits
Specialist later speculated that this or some other “bug” resulted
in an error in which her manual override for Husband’s benefits
did not take effect. Accordingly, although LifeMap never
approved Bear’s request for an increase in benefits, between
September 4, 2015, and February 5, 2016, the District erroneously

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 Bear v. LifeMap Assurance Co.

deducted increased premiums from Bear’s paychecks for a
$300,000 life insurance policy for Husband, which it then
transferred to LifeMap as part of the monthly lump sum
payment.4 The District deducted the correct amount
corresponding to a $10,000 life insurance policy for Bear during
that same time period.

¶10 Husband died in January 2016. Shortly after, Bear
contacted Benefits Specialist to submit a claim for $300,000 in life
insurance to LifeMap. In February, Benefits Specialist asked
LifeMap for clarification because the District’s records showed
that Bear was entitled to $14,0005 in life insurance benefits but
Bear was claiming to have an approval letter for $300,000.
LifeMap replied that it never received an EOI for Husband and
that its records did not show that it had issued an approval letter
for the requested increase. In April, LifeMap issued a check in
the amount of $14,085.34 to Bear, which consisted of the
amounts explained in footnote 5, with interest. LifeMap denied
Bear’s claim for the additional $290,000. The District later
refunded the increased premiums for Husband’s life insurance
policy that were erroneously deducted from Bear’s paychecks.

¶11 In 2018, Bear sued LifeMap and the District, alleging
breach of contract, breach of the covenant of good faith and fair
dealing, and promissory estoppel against both defendants. Bear
additionally alleged negligence, negligent supervision, breach of

4. Apparently, these deductions, in combination with other
adjustments, did not reach the 10% threshold that would trigger
future inquiry, as explained in paragraph four.

5. In addition to the $10,000 under the voluntary life insurance
policy, Bear was also entitled to $4,000 under a separate
dependent life insurance policy that was automatically available
to eligible District employees without premium payments.

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 Bear v. LifeMap Assurance Co.

fiduciary duty, conversion, and negligent misrepresentation
against the District.

¶12 Following discovery, the parties all filed motions for
summary judgment. After a hearing on all three motions, the
district court granted both defendants’ motions and denied
Bear’s motion. Accordingly, the court dismissed all claims
against LifeMap and the District.

¶13 Bear appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Bear appeals the district court’s denial of her motion for
summary judgment on her claims for breach of contract and
breach of the implied covenant of good faith and fair dealing
and its grant of LifeMap’s and the District’s motions for
summary judgment on those same claims.6 “Summary judgment
is only appropriate ‘if the moving party shows that there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.’” Arnold v. Grigsby, 2018
UT 14, ¶ 8, 417 P.3d 606 (quoting Utah R. Civ. P. 56(a)).
Accordingly, “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.” Heslop v. Bear River
Mutual Ins., 2017 UT 5, ¶ 20, 390 P.3d 314 (quotation simplified).
We apply this general standard to most of Bear’s challenges to
the court’s summary judgment rulings.

6. Bear does not appeal the district court’s summary judgment
rulings on her claim of promissory estoppel against both
defendants and claims of negligence, negligent supervision,
breach of fiduciary duty, conversion, and negligent
misrepresentation against the District.

20200183-CA 8 2021 UT App 129
 Bear v. LifeMap Assurance Co.

¶15 One exception to this general standard applies to review
of a district court’s summary judgment ruling on a waiver issue.
In such cases, “the legal conclusions underlying a trial court’s
grant of summary judgment . . . are reviewed with some
measure of deference.” IHC Health Services v. D & K Mgmt., 2003
UT 5, ¶ 6, 73 P.3d 320. This is because “[w]aiver is an intensely
fact dependent question, requiring a trial court to determine
whether a party has intentionally relinquished a known right,
benefit, or advantage.” Id. ¶ 7. Thus, “in a waiver case decided
on a motion for summary judgment, we consider all undisputed
material facts in the light most favorable to the nonmoving party
before determining whether the trial court’s decision on the
application of the law of waiver to those facts falls within the
bounds of its discretion.” Id. ¶ 6 (quotation simplified).

ANALYSIS

I. Breach of Contract

¶16 “The elements of a prima facie case for breach of contract
are (1) a contract, (2) performance by the party seeking recovery,
(3) breach of the contract by the other party, and (4) damages.”
America West Bank Members, LC v. Utah, 2014 UT 49, ¶ 15, 342
P.3d 224 (quotation simplified). Bear’s claims for breach of
contract against LifeMap and the District were at issue in all
three motions for summary judgment. We address this claim as
it was raised in each of the motions.

A. Bear’s Motion for Summary Judgment

¶17 In seeking summary judgment on her breach of contract
claim against LifeMap, Bear argued that Utah Code section
31A-23a-410 established the first and second elements of her
claim. The statute provides,

20200183-CA 9 2021 UT App 129
 Bear v. LifeMap Assurance Co.

Subject to Subsections (2) and (5), as between the
insurer and the insured, the insurer is considered
to have received the premium and is liable to the
insured for losses covered by the insurance and for
any unearned premiums upon cancellation of the
insurance if an insurer, including a surplus lines
insurer:
(a) assumes a risk; and
(b) the premium for that insurance is received by:
(i) a licensee who placed the insurance;
(ii) a group policyholder;
(iii) an employer who deducts part or all of the
premium from an employee’s wages or salary;
or
(iv) an employer who pays all or part of the
premium for an employee.

Utah Code Ann. § 31A-23a-410(1) (LexisNexis 2017).7

¶18 The district court rejected this argument. It held that the
statute did not apply and therefore Bear did not establish the
first two elements of her claim because regardless of “[w]hether
the premiums were remitted,” LifeMap did not “assume the
risk.” The court stated that under the Group Policy, LifeMap
agreed to an assumption of risk only if certain “conditions were
met for a particular employee.” Thus, because there “is a
precondition to [the] statute applying,” and as that
precondition—the requirement to submit an EOI—was not met,
the court concluded that the statute “does not apply here.”

7. Because the applicable provisions of the Utah Code in effect at
the relevant time do not materially differ from those currently in
effect, we cite the current version of the code for convenience.

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 Bear v. LifeMap Assurance Co.

¶19 Bear takes issue with the court’s conclusion that, with our
emphasis, LifeMap did not “assume[] the risk.” She insists, again
with our emphasis, that the statute instead required the court to
determine whether LifeMap “assume[d] a risk.” Bear contends
that this deviation from the statutory language is significant
because it led the court to erroneously interpret “‘assumes a risk’
to mean the specific risk with each individual employee.” Bear
argues that “the word ‘a’ in the . . . statute means that there is
one unspecified risk, and not a specific or particular risk,” which
the use of the word “the” would indicate. Thus, Bear asserts that
“LifeMap did ‘assume a risk’ because it is undisputed that it had
a group voluntary life insurance policy with the District.”

¶20 But even under Bear’s interpretation that LifeMap
“assume[d] a risk” by entering into the Group Policy with the
District, that risk is not completely open-ended. Rather, that risk
is defined by the terms of the Group Policy, and the two are
inextricably interwoven. Accordingly, under either
interpretation of the statute, the terms of the Group Policy
determine the extent of the risk of loss LifeMap undertook. And
the Group Policy expressly provided that LifeMap “will require
[an EOI] for all persons applying for insurance” if, among other
things, an employee wished to increase coverage or wished to
apply for coverage over the guaranteed issue amount. Thus,
even if LifeMap “assume[d] a risk,” as Bear contends, by
entering into the Group Policy with the District, such a risk was
not boundless—LifeMap expressly limited that risk, agreeing to
extend coverage to an employee or their spouse above the
guaranteed issue amount only upon its review of an EOI and
subsequent acceptance of the application. Further, the statute
does not require that an insurer assume a risk for any loss
incurred by a person making premium payments where, under
the terms of the policy, the insurer agreed to assume only a risk
of a specific loss. See Utah Transit Auth. v. Greyhound Lines, Inc.,
2015 UT 53, ¶ 33, 355 P.3d 947 (stating that in exchange for
premium payments, an insurance carrier “assumes the risk of

20200183-CA 11 2021 UT App 129
 Bear v. LifeMap Assurance Co.

loss, within the limits of the policy”). And here, as discussed in
more detail below, despite the District’s erroneous collection of
premium payments from Bear’s paychecks, no such contract
ever existed between LifeMap and Bear for a $300,000 policy.
LifeMap therefore never agreed to assume a risk of any kind
beyond the original $10,000 voluntary life insurance policy with
regard to Husband. Accordingly, the district court did not err in
concluding that the statutory requirement of “assum[ing] a risk”
was not met in this case.

B. LifeMap’s Motion for Summary Judgment

¶21 Bear next contends that the district court erred in granting
LifeMap’s motion for summary judgment on her breach of
contract claim. Specifically, she contends the court erred in
determining that (1) the condition precedent for coverage was
not met because the Group Policy unambiguously “require[s] an
EOI in these circumstances” and (2) LifeMap did not waive the
EOI requirement by accepting the higher premium payments.

1. Ambiguity

¶22 Bear asserts that the Group Policy “is ambiguous
regarding whether LifeMap’s receipt of an EOI is a condition
precedent before coverage will start.”8 She relies on Mellor v.
Wasatch Crest Mutual Insurance, 2009 UT 5, 201 P.3d 1004, which
noted that “an ambiguity in a contract may arise . . . because two
or more contract provisions, when read together, give rise to
different or inconsistent meanings, even though each provision
is clear when read alone.” Id. ¶ 13 (quotation simplified). Bear
contends an ambiguity exists because, with our emphasis, the

8. A condition precedent is “an act or event, other than a lapse of
time, that must exist or occur before a duty to perform
something promised arises.” McBride-Williams v. Huard, 2004 UT
21, ¶ 13, 94 P.3d 175 (quotation simplified).

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 Bear v. LifeMap Assurance Co.

heading of a provision, “WHEN WE MAY REQUIRE
EVIDENCE OF INSURABILITY,” contradicts the body of the
provision, which states that LifeMap “will require [an EOI] for all
persons applying for insurance” that, among other things,
exceeds the guaranteed issue amount or is an increase in
coverage. And because this alleged ambiguity exists, Bear argues
that “these inconsistent statements regarding whether an EOI is
required for coverage to start must be read in favor of coverage
for [Bear].” In other words, as a result of the alleged ambiguity,
she contends “that an EOI is not a condition precedent for
coverage under the [Group Policy].” See State Farm Mutual Auto.
Ins. v. DeHerrera, 2006 UT App 388, ¶ 7, 145 P.3d 1172 (“Because
insurance contracts are contracts of adhesion, ambiguous or
uncertain language in an insurance contract that is fairly
susceptible to different interpretations should be construed in
favor of coverage.”) (quotation simplified). We disagree that this
inconsistency between the heading and the body creates
ambiguity in the contract.

¶23 Under Mellor, “an ambiguity in a contract may arise . . .
because two or more contract provisions, when read together,
give rise to different or inconsistent meanings, even though each
provision is clear when read alone.” 2009 UT 5, ¶ 13 (emphasis
added) (quotation otherwise simplified). Accordingly, an
ambiguity may arise from the inconsistency to which Bear points
only if the heading is a substantive provision of the contract.
And we have previously held that “[c]ontract headings are more
appropriately regarded as organizational tools than substantive
contract provisions.” McEwan v. Mountain Land Support Corp.,
2005 UT App 240, ¶ 25, 116 P.3d 955. See also Vanderwood v.
Woodward, 2019 UT App 140, ¶ 26 n.7, 449 P.3d 983 (stating that a
court, in examining the plain meaning of contractual language,
may “give the section heading some weight” where “the section
heading is completely in harmony with the section’s text”).
Accordingly, “because the contract heading is not actually part
of the contract,” no ambiguity arises from any apparent

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 Bear v. LifeMap Assurance Co.

inconsistency between the heading and the substantive body of
the Group Policy. McEwan, 2005 UT App 240, ¶ 25. Nor is the
heading entitled to “some weight” when it is not “completely in
harmony with the section’s text.” Vanderwood, 2019 UT App 140,
¶ 26 n.7.

¶24 The substantive language of the contract provision in
issue unambiguously provides, with our emphasis, that LifeMap
“will require [an EOI] for all persons applying for” an increase in
coverage or insurance that exceeds the guaranteed issue amount.
This language created a condition precedent, which Bear
undisputedly failed to satisfy when she did not submit an EOI
for Husband. See Wade v. Utah Farm Bureau Ins., 700 P.2d 1093,
1095–96 (Utah 1985) (holding that failure to satisfy a condition
precedent—a medical exam, in that case—resulted in no life
insurance coverage). Accordingly, the district court did not err in
granting summary judgment to LifeMap on this ground.

2. Waiver

¶25 In granting summary judgment to LifeMap on the issue of
waiver, the district court held “that there was no waiver by
LifeMap [of the EOI requirement] simply by accepting and
receiving the premiums that were paid by Ms. Bear.” In the
court’s view, LifeMap’s acceptance of the premiums “could not
affect intentional or knowing waiver of its right to demand that
EOI simply because it received a lump sum payment of
premiums every month from the school district.” Bear contends
this ruling was in error because “there is [a] genuine issue of fact
regarding whether or not LifeMap—through its actions—
implicitly intended to enter into a contract with [Bear], and
whether it waived the EOI.” Specifically, Bear argues that
LifeMap knew the District was incorrectly administering the
Group Policy because the District failed to provide all required
information in the monthly bills it sent to LifeMap during the
2015–2016 school year. Bear asserts that by not immediately

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 Bear v. LifeMap Assurance Co.

acting to remedy the problems, LifeMap effectively “put its head
in the sand.” But even when viewing this fact in the light most
favorable to Bear, namely by assuming that LifeMap would have
discovered the District was erroneously deducting increased
premiums from Bear’s payroll if it had acted prudently, this does
not amount to waiver.

¶26 “A waiver is the intentional relinquishment of a known
right.” McCleve Props., LLC v. D. Ray Hult Family Ltd. P’ship, 2013
UT App 185, ¶ 10, 307 P.3d 650 (quotation simplified). “To
constitute waiver, there must be (1) an existing right, benefit or
advantage, (2) a knowledge of its existence, and (3) an intention
to relinquish it.” Id. (quotation simplified). “Courts do not lightly
consider a contract provision waived”—waiver can be
established only “where there is an intentional relinquishment of
a known right.” Mounteer Enters., Inc. v. Homeowners Ass’n for the
Colony at White Pine Canyon, 2018 UT 23, ¶ 17, 422 P.3d 809
(quotation simplified). Such relinquishment may be express or
implied, but if the latter, “the party asserting implied waiver
must establish that the other party intentionally acted in a
manner inconsistent with its contractual rights.” Id. (quotation
simplified). “Courts should exhibit caution in finding implied
waiver on the part of [a party] unless the totality of the
circumstances demonstrates an unambiguous intent to waive” a
contract right. U.S. Realty 86 Assocs. v. Security Inv., 2002 UT 14,
¶ 16, 40 P.3d 586 (quotation simplified). To that end, due to the
“intensely fact-dependent” nature of the waiver inquiry,
summary judgment on the issue of waiver is appropriate only
“if, under the totality of the circumstances, no reasonable fact
finder could conclude that [a party] intended to waive its
rights.” IHC Health Services v. D & K Mgmt., 2008 UT 73, ¶¶ 15,
19, 196 P.3d 588 (quotation simplified).

¶27 Bear, in effect, argues that LifeMap intentionally
relinquished its right to review an EOI for Husband because it
could have discovered that the District was erroneously

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 Bear v. LifeMap Assurance Co.

withdrawing the higher premium payments from her payroll,
but it did not take the necessary action to do so. Bear does not
cite any authority in support of this argument. Indeed, the law
on waiver is clear: a party must unambiguously intend to waive
a contract right before it is relinquished through waiver. See U.S.
Realty 86 Assocs., 2002 UT 14, ¶ 16. And without knowing that it
was receiving increased premium payments from Bear or even
knowing that Bear had applied for a $300,000 life insurance
benefit for Husband, LifeMap did not intentionally relinquish its
contractual right to review an EOI for Husband before providing
increased coverage. Had it reviewed such an EOI, it is
undisputed that it “would have . . . declined, absolutely,” Bear’s
application for substantially increased life insurance coverage
for Husband. Accordingly, “no reasonable fact finder could
conclude that [LifeMap] intended to waive its rights” to review
an EOI, see IHC Health Services, 2008 UT 73, ¶ 19, and the district
court did not err in granting summary judgment to LifeMap on
this question.

C. The District’s Motion for Summary Judgment

¶28 Bear next challenges the district court’s grant of the
District’s motion for summary judgment on her breach of
contract claim.9 In relevant part, the court granted summary

9. Bear also argues that a genuine issue of material fact exists
regarding whether a contract implied-in-fact existed between her
and the District. We do not address this argument because it is
unpreserved. “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.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443 (quotation simplified). Bear contends that the issue was
preserved because “[a] claim for breach of an express contract or
for breach of an implied-in-fact contract are both claims for
breach of contract and are virtually the same” and the court was
(continued…)

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 Bear v. LifeMap Assurance Co.

(…continued)
therefore presented an opportunity to rule on the issue. But to
properly present a district court with an opportunity to rule on
an issue for preservation purposes, “the issue must be
specifically raised by the party asserting error, in a timely
manner, and must be supported by evidence and relevant legal
authority.” Id. (quotation simplified). And although claims for
breach of contract and breach of a contract implied-in-fact are
similar, they are distinct claims and involve separate inquiries.
Compare America West Bank Members, LC v. Utah, 2014 UT 49,
¶ 15, 342 P.3d 224 (“The elements of a prima facie case for breach
of contract are (1) a contract, (2) performance by the party
seeking recovery, (3) breach of the contract by the other party,
and (4) damages.”) (quotation simplified), with Uhrhahn Constr.
& Design v. Hopkins, 2008 UT App 41, ¶ 18, 179 P.3d 808 (“A
contract implied in fact is a ‘contract’ established by conduct.
The elements are: (1) the defendant requested the plaintiff to
perform work; (2) the plaintiff expected the defendant to
compensate him or her for those services; and (3) the defendant
knew or should have known that the plaintiff expected
compensation.”) (quotation simplified). In opposing the
District’s motion for summary judgment, Bear raised and
discussed only the elements of a breach of contract claim and did
not discuss, much less support with relevant legal authority, the
contract implied-in-fact argument she now raises on appeal.
Accordingly, this argument is not preserved for appeal.
In the alternative, Bear argues that the plain error exception to
the preservation rule applies. But because Bear asserted plain
error for the first time in her reply brief, we do not consider it.
See Marcroft v. Labor Comm’n, 2015 UT App 174, ¶ 4, 356 P.3d 164
(“We have consistently refused to consider arguments of plain
error raised for the first time in an appellant’s reply brief, even if
the plain error argument is in response to a dispute over
(continued…)

20200183-CA 17 2021 UT App 129
 Bear v. LifeMap Assurance Co.

judgment to the District because Bear had not met her burden of
showing “that there was an offer of life insurance, an acceptance
of that offer of life insurance, and a meeting of the minds
between the parties that that life insurance contract existed.”
Specifically, the “alleged offer and acceptance was performed
through a period of open enrollment and ultimately was
consummated in . . . an exchange between Ms. Bear and a
computer in the iVisions system.” And “[m]ost of what [Bear]
had to say” on the subject during her deposition “was that she
did not remember the process that well, [and] that she could not
remember seeing certain documents.” In contrast, the printouts
of the pop-up and other documents the District provided “are
extremely clear that any application for life insurance, over the
guaranteed amount, requires an EOI.” Thus, although the court
acknowledged that the District deducted premium payments
from Bear’s paychecks and that Bear received a confirmation
statement “that showed she applied for $300,000 in benefits for
her and her husband,” the court nonetheless concluded that Bear
had not satisfied her evidentiary burden.

¶29 “[W]here the burden of production falls on the
nonmoving party, . . . the moving party may carry its burden of
persuasion . . . by showing that the nonmoving party has no
evidence to support an essential element of a claim.” Salo v.
Tyler, 2018 UT 7, ¶ 2, 417 P.3d 581. Here, the district court
determined that Bear had failed to produce evidence to support
the first element of a breach of contract claim: the existence of an
enforceable contract. See America West Bank Members, LC v. Utah,
2014 UT 49, ¶ 15, 342 P.3d 224. “An enforceable contract . . .
consists of the terms of a bargained-for exchange between the
parties. And the terms of the bargain are defined by the meeting

(…continued)
preservation raised for the first time in the appellee’s brief.”)
(quotation simplified).

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 Bear v. LifeMap Assurance Co.

of the minds of the parties—through an offer and acceptance
upon consideration.” Rossi v. University of Utah, 2021 UT 43, ¶ 31.
See Syme v. Symphony Group LLC, 2018 UT App 212, ¶ 13, 437
P.3d 576 (“A binding contract exists where it can be shown that
the parties had a meeting of the minds as to the integral features
of the agreement and that the terms are sufficiently definite as to
be capable of being enforced.”) (quotation simplified). “For an
offer to be one that would create a valid and binding contract, its
terms must be definite and unambiguous.” Lebrecht v. Deep Blue
Pools & Spas Inc., 2016 UT App 110, ¶ 13, 374 P.3d 1064
(quotation simplified). “An acceptance must unconditionally
assent to all material terms presented in the offer, including price
and method of performance, or it is a rejection of the offer.” Id.
(quotation simplified).

¶30 Bear contends the court overlooked evidence she
presented of the District’s offer of life insurance to eligible
employees, including herself. She first points to an agreement
that the Tooele Educational Support Professional Association
negotiated with the District on behalf of the District’s employees.
The agreement indicated that “Insurance Coverage will be
provided for all seven (7) hour employees” and that “Employees
are responsible for updating dependent coverage, change in
status, and open enrollment.” Bear also points to a flyer the
District distributed to its employees informing them of the dates
of the 2015–2016 open enrollment period and indicating that
they could enroll in, among other things, voluntary life
insurance. Lastly, Bear relies on the deposition testimony of
Benefits Specialist confirming that Bear had applied for $300,000
in life insurance benefits for herself and Husband.10

10. Bear also lists additional evidence in support of her
contention that she accepted the District’s alleged offer of life
insurance benefits. Because we conclude that Bear did not
(continued…)

20200183-CA 19 2021 UT App 129
 Bear v. LifeMap Assurance Co.

¶31 But this evidence supports only a conclusion that the
District offered to include voluntary life insurance as part of its
benefits package for eligible employees. This is not a point of
contention in this case. Rather, the issue of fact is whether the
District offered to directly pay life insurance benefits to its
employees. And even when viewing the aforementioned
evidence and all reasonable inferences in the light most
favorable to Bear, they do not support a conclusion that the
District made such an offer. See Christensen & Jensen, PC v. Barrett
& Daines, 2008 UT 64, ¶ 19, 194 P.3d 931.

¶32 Indeed, the evidence supports the opposite conclusion—
that the District offered to facilitate (and pay for part of) various
insurance benefits through third-party insurance carriers. For
example, in addition to providing the dates for the 2015–2016
open enrollment period, the flyer to which Bear points also
indicated changes made to insurance carriers from the previous
year. Also, the flyer informed employees that the District had
switched carriers for long-term disability insurance and that it
had added another carrier option for vision insurance. As
concerns voluntary life insurance, the flyer indicated that no
changes had been made from the previous year. And Bear has
not provided evidence that prior to the 2015–2016 enrollment
period, the District directly paid life insurance benefits to its
employees. To the contrary, the record is clear that the District
contracted with LifeMap to provide life insurance benefits to its
employees as early as 2012. Furthermore, although the District
deducted increased premiums from Bear’s pay over a
four-month period, it is undisputed that the District forwarded

(…continued)
provide evidence that the District offered to directly provide life
insurance to its employees, we do not address whether evidence
existed to support a conclusion that Bear accepted the purported
offer.

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 Bear v. LifeMap Assurance Co.

those premiums to LifeMap—the intended insurance carrier—as
part of the monthly lump sum payment.

¶33 Thus, because the evidence to which Bear points does not
contradict the evidence in the record that the District offered to
facilitate life insurance benefits for eligible employees through
the Group Policy it entered with LifeMap—and not to directly
pay the benefits itself—a dispute of material fact does not exist
on this point. See Utah R. Civ. P. 56; Salo, 2018 UT 7, ¶ 2.
Accordingly, the district court did not err in granting summary
judgment in favor of the District on the rationale that an
enforceable contract did not exist for the District to directly pay
any life insurance benefits for Husband.11

II. Implied Covenant of Good Faith and Fair Dealing

¶34 “The implied covenant of good faith and fair dealing . . .
inheres in every contract.” Backbone Worldwide Inc. v. LifeVantage
Corp., 2019 UT App 80, ¶ 16, 443 P.3d 780 (quotation simplified).
It “prohibits the parties from intentionally injuring the other
party’s right to receive the benefits of a contract, and prevents
either party from impeding the other’s performance of [their]
obligations by rendering it difficult or impossible for the other to
continue performance.” Id. (quotation simplified). But the
covenant of good faith and fair dealing (the covenant) cannot,
among other things, “compel a contractual party to exercise a

11. Because we conclude that an enforceable contract did not
exist for the District to directly pay life insurance benefits for
Husband, we do not address Bear’s argument that a dispute of
material fact exists as to whether the District waived its
contractual right to review an EOI before extending life
insurance benefits. It is clear that such right belonged to
LifeMap, not the District.

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 Bear v. LifeMap Assurance Co.

contractual right to its own detriment for the purpose of
benefitting another party.” Id. (quotation simplified).

¶35 Bear challenges the district court’s grant of summary
judgment on its claim against LifeMap and the District for
breach of the covenant. As against LifeMap, Bear merely asserts
that it “purposefully injured [her] right to the foregoing $300,000
in voluntary life insurance benefits when it denied [her] rightful
claim.” But as discussed above, the Group Policy is
unambiguously clear that Bear was required to submit an EOI
for Husband as part of the application process, which
contractual right LifeMap did not waive, and it is undisputed
that she failed to include an EOI as part of her application. It is
further undisputed that had she submitted an EOI, LifeMap
would have denied the application based on Husband’s highly
problematic medical history. Accordingly, LifeMap had the
contractual right to deny Bear’s claim and therefore did not
violate the covenant by doing so. See id. ¶ 24 (“As long as the
party has an express and objectively determined [contractual]
right, and absent elements of legal waiver being met, that party
may exercise that right, and its motives for doing so are
irrelevant, despite the existence of the implied covenant.”)
(quotation simplified).

¶36 And concerning the District, Bear’s argument is even
more meager. Her argument on this point is limited to the
assertion that “[a]s the implied covenant of good faith and fair
dealing inheres in all contracts, there is also a genuine issue of
fact on [her] claim for breach of [the] implied covenant of good
faith and fair dealing against the District based upon the above
facts.” Other than vaguely referencing “the above facts,” Bear
does not identify what conduct on the part of the District
constituted a breach of the covenant. Because we have concluded
that there was no contract by which the District would be
required to directly pay Husband’s life insurance benefits, the
District’s refusal to make such payment and its erroneous

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 Bear v. LifeMap Assurance Co.

deductions of premium payments from Bear’s paychecks cannot
be the ground for Bear’s claim against it. To the extent Bear
references the broader employment contract in which the
District agreed to provide her the option to apply for life
insurance through the Group Policy, it is also unclear what facts
Bear contends support a conclusion that the District breached the
covenant. Based on this, Bear has failed to meet her burden of
persuasion on this issue, and we do not address it further. See
Utah R. App. P. 24(a)(8) (“The argument must explain, with
reasoned analysis supported by citations to legal authority and
the record, why the party should prevail on appeal.”); Allen v.
Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (“An appellate court is not a
depository in which a party may dump the burden of argument
and research.”) (quotation simplified).

CONCLUSION

¶37 The district court did not err in denying Bear’s motion for
summary judgment and in granting LifeMap’s and the District’s
motions for summary judgment. Affirmed.

20200183-CA 23 2021 UT App 129