Monarrez v. Utah Department of Transportation

2014 UT App 219
_________________________________________________________

THE UTAH COURT OF APPEALS

JESUS MONARREZ,
Plaintiff and Appellant,
v.
UTAH DEPARTMENT OF TRANSPORTATION,
Defendant and Appellee.

Opinion
No. 20130378-CA
Filed September 11, 2014

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 120907616

Matthew G. Koyle and F. Kim Walpole, Attorneys
for Appellant

Sean D. Reyes and Stanford E. Purser, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which SENIOR
JUDGE RUSSELL W. BENCH concurred.1 JUDGE J. FREDERIC VOROS JR.
dissented, with opinion.

ROTH, Judge:

¶1 Jesus Monarrez appeals from the district court’s grant of
summary judgment in favor of the Utah Department of
Transportation (UDOT). Monarrez contests the district court’s

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
 Monarrez v. Utah Department of Transportation

interpretation of a provision in the Governmental Immunity Act
of Utah governing the time for filing a complaint after a
governmental entity denies a notice of claim (the Limitations
Provision). Alternatively, he contends that if we conclude that
the district court properly interpreted the Limitations Provision,
we should either apply the interpretation only prospectively or
conclude that UDOT was estopped from asserting the statute as
a basis for summary judgment. Monarrez also argues that the
district court erred in dismissing his claims against several John
Doe defendants because UDOT failed to establish that they were
government employees. We affirm the district court’s summary
judgment ruling.

BACKGROUND

¶2 This case arises under the Governmental Immunity Act of
Utah (the GIAU). As a prerequisite to filing suit against a
governmental entity, the GIAU requires an injured party to file a
notice of claim with the entity within one year after the claim
arises. Utah Code Ann. § 63G-7-402 (LexisNexis 2011)2
(explaining that ‚*a+ claim against a governmental entity, or
against an employee . . . is barred unless notice of claim is filed
. . . within one year after the claim arises‛). The governmental
entity has sixty days to approve or deny the claim, after which
the claim is deemed denied. Id. § 63G-7-403(1)(b) (‚A claim is
considered to be denied if, at the end of the 60-day period
[following the filing of the notice of claim], the governmental
entity or its insurance carrier has failed to approve or deny the
claim.‛). The claimant then has one year after the denial of the
claim to file litigation in the district court. Id. § 63G-7-403(2)(b).

2. Because the statutory provisions pertinent to this appeal have
not been substantively amended, we cite to the current version
of the Utah Code.

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 Monarrez v. Utah Department of Transportation

¶3 On August 24, 2010, Monarrez was injured in a
motorcycle crash that happened when he was forced to come to
a sudden stop on a slick area of roadway within a UDOT
construction zone. One year later, on August 23, 2011, Monarrez
filed a timely notice of claim, alleging that UDOT failed to post
warning signs or otherwise take measures to slow down traffic
in the construction zone. UDOT did not respond to Monarrez’s
notice of claim within sixty days of receiving it, and it asserts
that the claim was therefore automatically deemed denied on
October 24, 2011. However, three-and-a-half weeks later, on
November 15, 2011, UDOT sent Monarrez a letter that purported
to affirmatively deny his claim (the November 15 denial letter).
That letter informed Monarrez that after ‚an investigation of
your claim,‛ UDOT’s insurance carrier had ‚concluded that our
client is not liable‛ and therefore, UDOT must ‚respectively
deny your claim.‛ The letter also informed Monarrez that the
issuance of the letter ‚does not constitute a waiver of any of the
provisions or requirements of the Governmental Immunity Act,
Utah Code Ann. 63G-7-401 et seq.‛

¶4 On November 9, 2012, more than one year after the
deemed-denied date but less than one year after the November
15 denial letter, Monarrez filed a complaint in the Third District
Court against UDOT and several John Does, who were alleged to
be ‚construction companies and/or their employees.‛ UDOT
moved for summary judgment on the basis that Monarrez’s
claims were barred by subsection (2) of the GIAU’s Limitations
Provision, which requires claims against a governmental entity
to be filed ‚within one year after the denial of the claim or within
one year after the denial period.‛ Id. § 63G-7-403(2)(b). Because
the claim was deemed denied on October 24, 2011, UDOT
contended that the November 9, 2012 complaint was untimely.
The district court agreed and granted UDOT’s motion, resulting
in the dismissal of Monarrez’s claims against all parties with
prejudice. Monarrez now appeals.

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 Monarrez v. Utah Department of Transportation

ISSUE AND STANDARD OF REVIEW

¶5 Monarrez contends that summary judgment was
improperly granted in favor of UDOT and the Doe defendants.
Summary judgment is appropriate when ‚the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.‛ Utah R. Civ. P. 56(c). ‚An
appellate court reviews a trial court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness
and views the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.‛
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and
internal quotation marks omitted).

ANALYSIS

¶6 Monarrez asserts three alternative bases for reversing the
district court’s summary judgment decision. First, he contends
that the district court incorrectly interpreted subsection (2) of the
Limitations Provision, which requires that a complaint be filed
‚within one year after the denial of the claim or within one year
after the [sixty-day] denial period.‛ Utah Code Ann. § 63G-7-
403(2)(b). Second, he contends that if we conclude that the
district court’s interpretation of the Limitations Provision was
proper, it should apply only prospectively and not to his case.
Third, he asserts that UDOT should be estopped from raising the
GIAU as a defense because it sent him a written denial letter
after the deemed-denied date.

¶7 Finally, Monarrez argues that the court erred in granting
summary judgment with respect to the Doe defendants. He
contends that when the facts are construed in his favor, they
indisputably demonstrate that the Doe defendants were not
government employees subject to the requirements of the GIAU.
We address each of these arguments in turn.

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 Monarrez v. Utah Department of Transportation

I. Statutory Interpretation

¶8 Whether the district court correctly interpreted the
Limitations Provision of the GIAU is a question of law, and we
consider the statutory language de novo, according no deference
to the district court’s interpretation. See Marion Energy, Inc. v. KFJ
Ranch P’ship, 2011 UT 50, ¶ 12, 267 P.3d 863. The Limitations
Provision reads,

(1)(a) Within 60 days of the filing of a notice of
claim, the governmental entity or its insurance
carrier shall inform the claimant in writing that the
claim has either been approved or denied.

(b) A claim is considered to be denied if, at the end
of the 60-day period, the governmental entity or its
insurance carrier has failed to approve or deny the
claim.

(2)(a) If the claim is denied, a claimant may
institute an action in the district court against the
governmental entity or an employee of the entity.

(b) The claimant shall begin the action within one
year after denial of the claim or within one year
after the denial period specified in this chapter has
expired, regardless of whether or not the function
giving rise to the claim is characterized as
governmental.

Utah Code Ann. § 63G-7-403 (LexisNexis 2011).

¶9 Monarrez’s first argument focuses on the language in
subsection (2) directing a claimant to begin an action ‚within one
year after denial of the claim or within one year after the denial
period.‛ Id. § 63G-7-403(2)(b). Monarrez contends that although
subsection (1)(b) deems a claim denied once sixty days has
passed without a response from the government, UDOT’s letter
denying his claim in writing after the deemed-denied date

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 Monarrez v. Utah Department of Transportation

constituted an actual ‚denial of the claim‛ for purposes of
determining the start of the one-year period for filing a
complaint set out in subsection (2). Thus, according to Monarrez,
his complaint was timely if filed within one year of either the
deemed denial on October 24, 2011, or the written denial on
November 15, 2011.

¶10 Monarrez finds support for his position in the use of the
word ‚or‛ in subsection (2), which he interprets to mean that
when there is both a deemed denial and a subsequent written
denial, the claimant has a choice of filing within one year of
either date. See id. In other words, according to Monarrez, the
deemed-denied date starts the clock on the one-year period to
file a complaint only if there is no written denial, but a written
denial governs the time to file no matter when it is issued,
whether before or after the sixty-day period. Adopting
Monarrez’s interpretation of subsection (2) would render his
November 9, 2012 complaint timely because the complaint was
filed within one year of the written denial on November 15,
2011, even though it was beyond one year from the deemed-
denied date.

¶11 UDOT counters by pointing to case law that states that
the Limitations Provision must be ‚interpreted as a
comprehensive whole and not in piecemeal fashion.‛ See
Business Aviation of S.D., Inc. v. Medivest, Inc., 882 P.2d 662, 665
(Utah 1994) (citation and internal quotation marks omitted).
According to UDOT, subsection (1) of the Limitations Provision
provides two means for denying a claim that are mutually
exclusive: actual denial within sixty days of the notice of claim or
deemed denial once sixty days has elapsed without a response.
See Utah Code Ann. § 63G-7-403(1). Thus, it contends, subsection
(2) requires a claimant to commence legal action within one year
of the denial date that applies: if a written denial is sent within
sixty days, then a year from the letter’s date, and if no written
denial is issued within sixty days, then a year from the end of
that period. According to UDOT’s reading of the statute,
Monarrez’s complaint is untimely because UDOT did not deny

20130378-CA 6 2014 UT App 219
 Monarrez v. Utah Department of Transportation

his claim in writing within sixty days so the denial occurred
automatically on October 24, 2011, and Monarrez filed his
complaint more than a year later.

¶12 We first look to the plain language of a statute to ascertain
its meaning. H.U.F. v. W.P.W., 2009 UT 10, ¶ 32, 203 P.3d 943. ‚In
doing so, [w]e presume that the legislature used each word
advisedly and read each term according to its ordinary and
accepted meaning.‛ Harold Selman, Inc. v. Box Elder Cnty., 2011
UT 18, ¶ 18, 251 P.3d 804 (alteration in original) (citation and
internal quotation marks omitted). “We [then] read the plain
language of a statute as a whole and interpret its provisions in
harmony with other provisions in the same statute and with
other statutes under the same and related chapters.‛ H.U.F., 2009
UT 10, ¶ 32.

¶13 Subsection (1) states that ‚*w+ithin 60 days of the filing of
a notice of claim, the governmental entity or its insurance carrier
shall inform the claimant in writing that the claim has either
been approved or denied.‛ Utah Code Ann. § 63G-7-403(1)(a)
(LexisNexis 2011). Failure to so inform the claimant results in the
‚claim *being+ considered to be denied . . . at the end of the 60-
day period.‛ Id. § 63G-7-403(1)(b). A plain reading of
subsection (1) informs us that the legislature intended the
government to provide a response to a notice of claim within
sixty days of receiving it. Id. § 63G-7-403(1)(a); see also Board of
Educ. of Granite Sch. Dist. v. Salt Lake Cnty., 659 P.2d 1030, 1035
(Utah 1983) (explaining that the word ‚shall‛ is ‚usually
presumed mandatory,‛ meaning the desired outcome must
occur according to the terms of the statute). Recognizing that a
response may not always be forthcoming within the time period
prescribed, however, the legislature provided a safeguard for the
claimant as a potential plaintiff: the claim is deemed denied
upon the expiration of the sixty-day response period so as to
clearly mark the start of the one-year limitations period for filing
a complaint in district court and to minimize the potential for
bureaucratic delay in resolution of the claim. Utah Code Ann.
§ 63G-7-403(1)(b), (2). Thus, subsection (1) clearly sets out two

20130378-CA 7 2014 UT App 219
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mutually-exclusive methods for the resolution of the claimant’s
notice of claim—through the government’s written response
approving or denying the claim within sixty days or by deemed
denial on day sixty-one if the government has provided no
response. With this interpretation of subsection (1) in mind, we
now consider the meaning of subsection (2).

¶14 Subsection (2) provides that the claimant ‚may institute an
action in the district court against the governmental entity‛ after
a notice of claim is denied. Id. § 63G-7-403(2)(a) (emphasis
added). Upon electing to proceed in the courts, the claimant must
do so ‚within one year after denial of the claim or within one
year after the denial period specified.‛ Id. § 63G-7-403(2)(b). In
isolation, we might be inclined to read the word ‚or‛ as
providing an alternative, as Monarrez advocates. See, e.g.,
Calhoun v. State Farm Mut. Auto Ins. Co., 2004 UT 56, ¶ 20, 96 P.3d
916 (‚The legislature’s separation of these two *statutory+
sections by the disjunctive ‘or’ as opposed to the conjunctive
‘and,’ clearly mandates that a policy need only provide owner’s
coverage or operator’s coverage—not both.‛).

¶15 However, when subsection (2) is read ‚in harmony with‛
subsection (1), see H.U.F., 2009 UT 10, ¶ 32, it becomes apparent
that subsection (2) is providing a one-year deadline from
whichever subsection (1) denial date applies—the date of actual
denial if denied in writing within sixty days of the notice of
claim or the deemed-denied date if the government failed to
respond within sixty days. The Limitations Provision provides
no other option for denial, and the structural symmetry of the
section seems to confirm that none was intended. For instance,
the denial sequence set out in subsection (1)—either written
acceptance or denial within sixty days (subsection (1)(a)) or
deemed denial at the end of sixty days (subsection (1)(b))—is
mirrored in the time-for-filing requirements set out in subsection
(2)(b), where the one-year time-for-filing period is matched first
to a written ‚denial of the claim‛ and then to the end of ‚the
denial period.‛ The apparent synchronization of the order in
which the denial options and the time-for-filing requirements

20130378-CA 8 2014 UT App 219
 Monarrez v. Utah Department of Transportation

are discussed strongly suggests an intentional correlation. The
plain language of this provision therefore does not support
Monarrez’s interpretation that a functionally superfluous denial
letter restarts the one-year period for filing a complaint as of
whatever date the letter may have been sent.

¶16 A determination that a statute’s plain language
unambiguously informs the public of its meaning generally ends
the inquiry about a statute’s interpretation. In this case, however,
Monarrez points to two other statutory provisions—found in
Utah’s Administrative Procedures Act (APA) and Governmental
Records Access and Management Act (GRAMA)—that contain
similar phrasing and have been interpreted to permit a choice of
filing date when the government denies a request in writing
after the request has already been deemed denied as a matter of
law.

A. APA

¶17 The APA authorizes a party to request reconsideration of
certain agency decisions. Utah Code Ann. § 63G-4-302(1)(a)
(LexisNexis 2011). If the agency does not respond within twenty
days, ‚the request for reconsideration shall be considered to be
denied.‛ Id. § 63G-4-302(3)(b). The time period for seeking
judicial review then extends for thirty days from either the date
the agency denies the request for reconsideration in writing or
the deemed-denied date of the request. Id. § 63G-4-401(3)(a) (‚A
party shall file a petition for judicial review of final agency
action within 30 days after the date that the order constituting
the final agency action is issued or is considered to have been
issued under Subsection 63G-4-302(3)(b).‛).

¶18 In Harper Investments, Inc. v. Auditing Division, Utah State
Tax Commission, 868 P.2d 813 (Utah 1994), our supreme court
interpreted these provisions in considering whether the Harper
companies’ request for judicial review was timely. Id. at 815–16
(interpreting the 1989 version of the APA, which contained
provisions identical to their counterparts in the current version).

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 Monarrez v. Utah Department of Transportation

The Harper companies petitioned, on May 4, 1992, for
reconsideration of a tax assessment. Id. at 815. The Tax
Commission did not respond, and as a result, the request was
deemed denied, by operation of law, on May 25. Id. On June 3,
however, the Tax Commission formally denied the petition for
reconsideration in a final written order. Id. The Harper
companies sought judicial review on July 1, more than thirty
days past the deemed-denied date but within thirty days of the
written denial. Id. The Tax Commission took the position that the
Harper companies ‚were tardy in seeking judicial review *on
July 1] because the [APA] provides that a petition for
reconsideration is ‘deemed denied’ if no action is taken by the
agency within twenty days of the petition . . . . [Thus,] the thirty-
day period for seeking judicial review began to run on May 25,
1992.‛ Id. (citation omitted). The supreme court disagreed,
concluding that ‚if an agency chooses to issue an order denying
a petition for reconsideration after the twenty-day presumptive
denial period, the actual date of issuance would mark the
beginning of the thirty-day time period.‛ Id. at 816 (citing 49th
St. Galleria v. Tax Comm’n, Auditing Div., 860 P.2d 996, 999 (Utah
Ct. App. 1993) (addressing the same question where the tax
commission sent a written denial after the time for seeking
judicial review had expired)). The court explained that the
Harper companies had assumed the risk that there would be no
order from the Tax Commission on their petition for
reconsideration when they failed to seek judicial review within
thirty days of the deemed-denied date. Id. But once the Tax
Commission elected to issue a subsequent written denial, the
Harper companies received the benefit of a refreshed time
period for filing an appeal. Id. Because the Harper companies’
request for judicial review was timely with respect to the written
denial, the supreme court concluded that it would consider the
merits of their appeal. Id.3

3. Justice Howe dissented from the majority’s conclusion that a
late-issued written denial refreshed the time period for filing an
appeal. In doing so, he relied upon the plain language of the
(continued . . .)

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 Monarrez v. Utah Department of Transportation

¶19 Eight years later, the Utah Supreme Court applied Harper
Investments’ reasoning when it considered the interpretation of
an analogous provision in GRAMA.

B. GRAMA

¶20 GRAMA establishes a process for requesting
governmental records and appealing the denial of such a
request. Utah Code Ann. §§ 63G-2-401 to -405 (LexisNexis 2011
& Supp. 2013). To appeal the denial of a records request, the
requesting party must file a notice of appeal with the chief

statute, which he concluded clearly states that ‚the thirty days’
appeal time . . . run[s] from either the date on which the agency
denies the request for reconsideration or the date on which it is
considered denied‛ and does not lend itself to the interpretation
the majority gave it where the ‚thirty days’ appeal time . . .
[would] run from . . . whichever [date] is later.‛ Harper Invs., Inc. v.
Auditing Div., Utah State Tax Comm’n, 868 P.2d 813, 816 (Utah
1994) (Howe, J., dissenting) (first emphasis added).
Justice Howe expressed concern that the majority’s
reading added uncertainty to the appeal process, noting that
‚when an agency does not act on a request for reconsideration
within twenty days, it is considered to be denied,‛ thus
triggering the time for seeking judicial review. Id. at 817. But
under the majority’s interpretation, ‚at any time thereafter (and
apparently without any outside limit) the agency may act on the
request, thereby breathing life into the case, and start running
again the thirty days to seek judicial review.‛ Id. ‚*Such
uncertainty] creates a dilemma for an aggrieved party who
desires to seek judicial review‛ because he or she must seek
judicial review within thirty days of the deemed-denied date or
risk losing the right to appeal altogether. Id. Yet, if the request is
later denied in writing, the original appeal is premature and may
have to be dismissed and refiled, resulting in additional costs
and unnecessary duplication in the process. Id.

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 Monarrez v. Utah Department of Transportation

administrative officer of the governmental entity. Id. § 63G-2-
401(1)(a) (LexisNexis Supp. 2013). The chief administrative
officer then has either five or twelve days, depending on the type
of request, to ‚make a determination on the appeal.‛ Id. § 63G-2-
401(5)(a). And ‚*i+f the chief administrative officer fails to make a
determination within the time specified . . . , the failure shall be
considered the equivalent of an order denying the appeal.‛
Id. § 63G-2-401(5)(b). The requester may then petition for judicial
review in the district court. Id. § 63G-2-402(1)(b) (LexisNexis
2011). The requester must do so within ‚30 days after the
governmental entity has responded to the records request . . .
*by+ denying the request‛ or ‚35 days after the original request if
the governmental entity failed to respond to the request.‛ Id.
§ 63G-2-404(2)(b) (LexisNexis Supp. 2013).

¶21 The Utah Supreme Court considered the application of
these provisions in Young v. Salt Lake County, 2002 UT 70, 52 P.3d
1240. Id. ¶¶ 6–11 (interpreting the 1997 version of GRAMA,
which contains the same pertinent language as the current
version). After Salt Lake County terminated Young’s
employment as a sheriff’s deputy for disciplinary reasons,
Young sought the disciplinary records of other deputies who
had been investigated for similar conduct. Id. ¶ 2. The county
denied Young’s records request, and Young filed a timely notice
of appeal with the county sheriff on March 28, 2000. Id. ¶¶ 3, 7.
The sheriff did not respond within the required five days,
resulting in the deemed denial of Young’s appeal on April 3, but
on April 20, the sheriff issued a letter expressly denying the
appeal. Id. ¶ 7. On May 16, more than thirty-five days from the
notice of appeal but less than thirty days after the written denial,
Young petitioned for judicial review in the district court. Id. The
county asserted that the petition was untimely because GRAMA
required Young to have filed it by May 2, 2000, thirty-five days
after the notice of appeal to the sheriff. See id. ¶ 8.

¶22 The supreme court disagreed, holding that the statute’s
use of ‚the word ‘or’ between the . . . alternative time periods for
filing‛ clearly allowed Young to file his complaint for judicial

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review within thirty days of the sheriff’s written denial of his
appeal. Id. ¶ 9; see also id. ¶¶ 10–11 (citing Harper Invs., Inc., 868
P.2d at 815). In a footnote, the court further reasoned that the
May 16 petition for judicial review ought to be considered timely
because GRAMA ‚authorizes the parties to extend the specified
time periods by agreement‛ and the parties had implicitly
agreed to extend the sheriff’s time to act. Id. ¶ 11 n.2; see also
Utah Code Ann. § 63G-2-401(5)(c) (LexisNexis Supp. 2013) (‚The
provisions of this section [governing appeals of a GRAMA
request] notwithstanding, the parties participating in the
proceeding may, by agreement, extend the time periods
specified in this section.‛). The court cited the sheriff’s decision
to respond in writing after the appeal had already been deemed
denied and Young’s reliance on the date of the written decision
for calculating the time period for seeking judicial review as
evidence of such an agreement. Young, 2002 UT 70, ¶ 11 n.2.
Consequently, it determined that there was ‚no statutory bar‛
preventing the sheriff from responding in writing after the
deemed-denied date or precluding Young’s petition for judicial
review from being filed within thirty days of the written denial.
Id.

C. GIAU

¶23 Despite some similarities in language, we conclude that
the APA and GRAMA limitations provisions are sufficiently
distinguishable so that neither Harper Investments nor Young call
into question our plain language reading of the GIAU. In this
regard, we believe there are three significant distinctions
between the GIAU and the APA and GRAMA.

¶24 First, the cases cited by Monarrez each deal with the time
period for seeking judicial review after a governmental entity’s
denial of a post-decisional petition for further consideration (or
reconsideration) of an issue that had already been decided on the
merits. Young, 2002 UT 70, ¶ 7 (discussing time periods in
relation to GRAMA’s internal agency appeal process after
decision on initial records request); Harper Invs., Inc. v. Auditing

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Div., Utah State Tax Comm’n, 868 P.2d 813, 815 (Utah 1994)
(addressing time periods for judicial review after a petition for
reconsideration of final agency action); 49th St. Galleria v. Tax
Comm’n, Auditing Div., 860 P.2d 996, 998 (Utah Ct. App. 1993)
(same as Harper Investments). The procedural posture of those
cases creates an incentive for the party requesting
reconsideration to wait beyond the deemed-denied date for the
governmental entity’s written ruling because the decision could
provide a considered response to the reconsideration request
that would be helpful to the petitioner’s decision whether to
even seek judicial review. Furthermore, the entity’s written
explanation of the reasons for denying the petition could
facilitate the judicial review process itself. See, e.g., 49th St.
Galleria, 860 P.2d at 998 n.7 (observing that the Tax
Commission’s denial of 49th Street Galleria’s request for
consideration, although untimely, was multi-paged and not
entered merely as a ‚meaningless gesture‛). In contrast, the
governmental response to a notice of claim under the GIAU is
more likely to simply approve or deny a claim without any
detailed analysis to support the decision because there appears
to be little incentive to explain such a decision in any detail. See
Utah Code Ann. § 63G-7-403(1)(a) (LexisNexis 2011) (requiring
only that the governmental entity or its insurance carrier notify
the claimant that his or her claim has been approved or denied).

¶25 The second distinction is related to the first. Under both
the APA and GRAMA, the aggrieved party has a very short time
period—approximately thirty days—within which to seek
judicial review after the deemed-denied date. Id. § 63G-4-
401(3)(a) (the APA); id. § 63G-2-404(2)(b) (LexisNexis Supp. 2013)
(GRAMA). And in all three cases cited by Monarrez, the late-
issued written denial came either after the time for seeking
review had expired or at the very end of that period. Young, 2002
UT 70, ¶ 7 (sending a letter denying the notice of appeal on the
twenty-third day of the thirty-five-day period for seeking
judicial review of a deemed-denied appeal); Harper Invs., Inc.,
868 P.2d at 815 (issuing an order denying reconsideration on the
thirtieth day of the thirty-day period for seeking judicial review);

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49th St. Galleria, 860 P.2d at 998 & n.2 (issuing a multiple-page
order denying the petition for reconsideration ninety-one days
after the petition was filed and more than sixty days after the
period for seeking judicial review expired). But even though
there is an incentive for a party to wait for a written ruling, were
the deemed-denied date the only trigger for the judicial review
period, parties would be discouraged from doing so by the very
high risk of missing the review deadline should they opt to wait
for the governmental entity’s presumably more informative
written ruling before deciding whether to appeal the original
decision. And the entity’s incentive to more thoroughly consider
post-decisional petitions through the mechanism of an
explanatory written ruling could be considerably reduced were
the judicial review deadline tied solely to the deemed-denied
date. Under the GIAU, on the other hand, the claimant has an
entire year after the deemed-denied date to file a complaint.
Utah Code Ann. § 63G-7-403(2)(b) (LexisNexis 2011). Thus, to the
extent UDOT’s decision to send Monarrez a written denial letter
in November 2011, three-and-a-half weeks after the deemed-
denied date, created any uncertainty about the precise date upon
which the one-year period began, Monarrez still had over eleven
months from the November 15 denial letter in which to timely
file his complaint. Therefore, a post-denial written response—
such as UDOT’s here—does not seem to create the kind of
dilemma for a tort claimant that the much shorter timelines of
the APA and GRAMA pose for those who have filed requests for
further consideration of the original decision.

¶26 Finally, under GRAMA—and apparently under the APA,
as well—the deadlines for a governmental entity’s response can
be extended. In Young, the supreme court concluded that the
sheriff’s late-sent letter denying Young’s appeal reopened the
time for filing a petition for judicial review. Young v. Salt Lake
Cnty., 2002 UT 70, ¶¶ 9–11, 52 P.3d 1240. The court explained
that its conclusion was based in part on the fact that GRAMA
expressly authorizes the parties to extend by agreement the time
periods specified in the act, including the deadline for the chief
administrative officer to respond. Id. ¶ 11 n.2. The APA also

20130378-CA 15 2014 UT App 219
 Monarrez v. Utah Department of Transportation

appears to provide similar authority to extend deadlines,
although this authority was not explicitly relied on in either
Harper Investments or 49th Street Galleria. See Utah Code Ann.
§ 63G-4-102(9) (‚Nothing in this chapter may be interpreted to
restrict a presiding officer, for good cause shown, from
lengthening or shortening a time period prescribed in this
chapter, except the time period established for judicial review.‛).
The GIAU appears to have no counterpart that authorizes an
extension of the time to respond to a notice of claim.

¶27 Indeed, Utah courts have ‚consistently and uniformly
held‛ that strict compliance with the GIAU is required. Wheeler
v. McPherson, 2002 UT 16, ¶ 11, 40 P.3d 632 (citation and internal
quotation marks omitted). ‚*T+his standard of strict compliance
derives naturally from both basic principles of sovereign
immunity and from the text of the Immunity Act itself.‛ Id. Thus,
‚there is no authority for allowing anything less than strict
compliance [with the GIAU] in the absence of ambiguity in the
statute.‛ Gurule v. Salt Lake Cnty., 2003 UT 25, ¶ 9, 69 P.3d 1287.
Applying this standard, we have ‚repeatedly denied recourse to
parties that have even slightly diverged from the exactness
required by the Immunity Act.‛ Wheeler, 2006 UT 16, ¶ 12. For
example, we have upheld the dismissal of a cause of action
against the government where the notice of claim was deemed
denied in March 2004 but the claimant failed to file a complaint
within one year of the deemed-denied date. Morales v. State, 2007
UT App 250U, paras. 3–5 (per curiam). In that case, the claimant
had put off filing a complaint in reliance on a May 2004 letter
from the State, indicating that the State was willing to settle the
dispute. Id. para. 4. Nonetheless, we held that to maintain his
claim, Morales ‚was compelled to comply with the express
dictates of the Act‛ and was not excused from filing a complaint
within the prescribed time period. Id. para. 5.

¶28 We are not persuaded that there are any ambiguities in
the GIAU’s Limitations Provision that would permit anything
less than strict compliance with the GIAU requirements. Under
this interpretation, Monarrez’s complaint was due by October

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 Monarrez v. Utah Department of Transportation

24, 2012, one year after the deemed denial. The November 9,
2012 complaint was therefore untimely.

II. Prospective Application

¶29 Monarrez nevertheless contends that, under the
circumstances, we should apply this interpretation of the
Limitations Provision only prospectively. In support of his
argument, he asserts that this is a question of interpretation that
has never before been addressed by our courts. He further
argues that in light of the Utah appellate courts’ interpretation of
similar language in the APA and GRAMA, the Limitations
Provision’s language itself is not sufficiently clear to inform him
that a filing made within one year of the written denial date but
more than one year past the deemed-denied date would be
barred as untimely. Monarrez also cites his California
residency—in other words, his unfamiliarity with Utah law—as
a basis for excusing his misinterpretation of the Limitations
Provision.

¶30 ‚The general rule from time immemorial is that the ruling
of a court is deemed to state the true nature of the law both
retrospectively and prospectively.‛ Malan v. Lewis, 693 P.2d 661,
676 (Utah 1984). Retroactive application is not rigidly required in
civil cases, however, and we have discretion to depart from the
general rule when retroactive application will result in
‚substantial injustice.‛ Id. In making such a determination,

we look to the impact retroactive application
would have on those affected. When we conclude
that there has been justifiable reliance on the prior
state of the law or that the retroactive application
of the new law may otherwise create an undue
burden, the court may order that a decision apply
only prospectively.

Kennecott Corp. v. State Tax Comm’n of Utah, 862 P.2d 1348, 1352
(Utah 1993) (citation and internal quotation marks omitted).

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 Monarrez v. Utah Department of Transportation

Some examples of circumstances in which appellate courts ‚have
applied changed law only prospectively [include] cases where
parties have planned tax strategy based on prior law,‛ Van Dyke
v. Chappell, 818 P.2d 1023, 1025 (Utah 1991) (citing Loyal Order of
Moose v. County Bd. of Equalization, 657 P.2d 257, 265 (Utah 1982)),
and ‚where a city has prepared its budget based on mill levies
and tax collection figures based on a prior tax scheme,‛ id. (citing
Rio Algom Corp. v. San Juan Cnty., 681 P.2d 184, 195–96 (Utah
1984)). In those cases, the reliance on the prior interpretation of
the law was apparent; tax assessment and budget planning were
being performed regularly using the law that had been
superseded.

¶31 In contrast, our decision today does not depart from a
prior understanding of the law; rather, it explicitly addresses the
proper interpretation for the first time. Furthermore, although
Utah appellate courts have not previously considered the
application of the GIAU’s Limitations Provision in the context
we have addressed here, we have determined that its plain
language is unambiguous and clearly communicates to an
injured party the time constraints on filing a claim against a
governmental entity and its employees. And while we recognize
that Utah courts have interpreted certain provisions of the APA
and GRAMA to allow a party to rely upon a written denial
issued after the deemed-denied date as the start of the time
period for seeking relief in the district court, we note that
Monarrez has made no attempt to demonstrate that these cases
have been relied upon to any extent to interpret the
requirements of the GIAU’s Limitations Provision. More
specifically, Monarrez has not asserted that he relied upon those
cases to determine that his complaint was not due until
November 2012 or that because of them, the broader legal
community has understood the Limitations Provision to mean
that a governmental entity’s written denial of a claim after the
deemed-denied date restarts the one-year period for filing a
complaint. Nor has he demonstrated that such reliance would
have been reasonable in light of our long-standing adherence to
the maxim that a claimant must strictly comply with

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 Monarrez v. Utah Department of Transportation

unambiguous GIAU requirements. See Gurule, 2003 UT 25, ¶ 9
(‚*T+here is no authority for allowing anything less than strict
compliance [with the GIAU] in the absence of ambiguity in the
statute.‛); Wheeler, 2002 UT 16, ¶ 12 (observing that Utah
appellate courts have ‚repeatedly denied recourse to parties that
have even slightly diverged from the exactness required by the
Immunity Act‛).

¶32 We also find no reason to believe that retroactive
application of our interpretation of the GIAU’s Limitations
Provision creates an undue burden. Our decision does not undo
or undermine a previous interpretation of the statute; it merely
explicitly endorses the apparent meaning of the statute’s plain
language. And Monarrez has not demonstrated that he suffered
any undue burden, e.g., that his California residence prevented
him from understanding the Limitations Provision, particularly
where he hired a Utah attorney to represent him.

¶33 We therefore conclude that retroactive application of the
interpretation of the Limitations Provision has minimal impact
and does not result in substantial injustice in this case. For these
reasons, we deny Monarrez’s request that the interpretation be
applied prospectively only.

III. Estoppel

¶34 Monarrez alternatively asserts that ‚UDOT should be
estopped from raising the deemed denial because it chose to
issue an actual denial letter after the deemed deni*ed+ date.‛
Monarrez’s contention is not persuasive.

¶35 Generally, a claim of estoppel cannot be asserted against
the government. McLeod v. Retirement Bd., 2011 UT App 190,
¶ 20, 257 P.3d 1090. Utah courts have allowed a claim of
equitable estoppel against a governmental entity when
‚necessary to prevent manifest injustice.‛ Celebrity Club, Inc. v.
Utah Liquor Control Comm’n, 602 P.2d 689, 694 (Utah 1979)
(citation and internal quotation marks omitted); Benson v. Peace

20130378-CA 19 2014 UT App 219
 Monarrez v. Utah Department of Transportation

Officer Standards & Training Council, 2011 UT App 220, ¶ 8, 261
P.3d 643. So far, however, ‚Utah courts have permitted estoppel
against the government [only in cases that] have involved very
specific written representations by authorized government
entities.‛ Benson, 2011 UT App 220, ¶ 12. We conclude that
Monarrez has not established the elements for invoking estoppel
against the government.

¶36 The elements of equitable estoppel are

(1) an admission, statement, or act inconsistent
with the claim afterwards asserted,

(2) action by the other party on the faith of such
admission, statement, or act, and

(3) injury to [the] other party resulting from
allowing the first party to contradict or repudiate
such admission, statement, or act.

Celebrity Club, 602 P.2d at 694.

¶37 Monarrez contends that UDOT’s summary judgment
assertion that the GIAU required him to file his complaint within
one year of the deemed-denied date, October 24, 2011, was
inconsistent with UDOT’s written denial letter on November 15,
2011. And, Monarrez contends, it was reasonable for him to rely
upon the November 15 denial letter as the starting date for the
one-year clock for filing his claim. Monarrez also asserts that he
suffered harm as a result of that reliance because he is now
barred from suing UDOT for the injuries he incurred in the
motorcycle accident.

¶38 Monarrez’s estoppel claim fails for a number of reasons.
First, the November 15 denial letter, which Monarrez attached to
his summary judgment opposition memorandum, is not an
initial statement by UDOT that can be viewed as inconsistent
with its later assertion that Monarrez must comply with the
Limitations Provision. The sending of the letter is not itself an

20130378-CA 20 2014 UT App 219
 Monarrez v. Utah Department of Transportation

affirmative representation that the Limitations Provision may be
interpreted as Monarrez contends, especially in the face of the
plain language of the statute. Furthermore, the November 15
denial letter does not purport to extend the time period for filing
a claim against the government. And reliance upon the denial
letter as the start of the time period for filing a complaint would
not have been reasonable ‚because the notice of claim was
denied on [October 24, 2011,+ by operation of law.‛ See State v.
Morales, 2007 UT App 250U, para. 5 (per curiam). ‚Once the
notice of claim was denied by operation of law, [Monarrez] was
compelled to comply with the express dictates of the Act.‛ See id.

¶39 Second, the November 15 letter explicitly informed
Monarrez that the letter did ‚not constitute a waiver of any of
the provisions or requirements of the Governmental Immunity
Act, Utah Code Ann. 63G-7-401 et seq.‛ Therefore, UDOT’s
express reservation of its right to enforce the GIAU requirements
in the written letter cannot be construed as inconsistent with its
later assertion of the GIAU as a basis for dismissing the
complaint. Rather, ‚*t+his language unambiguously informed‛
Monarrez that despite UDOT’s written notice of denial sent after
the deemed-denied date had passed, ‚the State was not waiving
any defenses available to it under the Utah Governmental
Immunity Act, nor was it excusing [him] from strictly complying
with the Act’s requirements.‛ See id. (addressing an estoppel
claim where the notice from the state contained identical non-
waiver language). The doctrine of equitable estoppel therefore
cannot save Monarrez’s failure to file his complaint within one
year of the deemed-denied date.

¶40 In summary, the Limitations Provision clearly provides
that Monarrez had to file his complaint within one year of the
deemed-denied date of October 24, 2011. We have declined
Monarrez’s invitation to apply the interpretation of the
Limitations Provision prospectively only, and we have also
rejected his contention that UDOT was estopped from asserting
the limitations period. Accordingly, we affirm the grant of
summary judgment.

20130378-CA 21 2014 UT App 219
 Monarrez v. Utah Department of Transportation

IV. Dismissal of Doe Defendants

¶41 Finally, Monarrez contends that the district court erred in
dismissing the Doe defendants when it granted UDOT’s motion
for summary judgment on the basis that he had not complied
with the GIAU. Neither party submitted evidence about the
identity of the Doe defendants in their summary judgment
filings; instead, they both relied solely on the allegations of
Monarrez’s complaint to support their arguments.

¶42 Monarrez maintains that his complaint identified the Doe
defendants simply as ‚construction companies and/or their
employees‛ and not as government employees who are subject
to the requirements of the GIAU. See Utah Code Ann. § 63G-7-
201(1) (LexisNexis Supp. 2013) (explaining that governmental
entities and employees are protected from liability except as
provided by the GIAU); id. § 63G-7-102(c) (LexisNexis 2011)
(defining ‚employee‛ to exclude independent contractors). He
further asserts that UDOT did not present any evidence to
demonstrate that the Doe defendants were employed by UDOT
as part of its summary judgment motion. In the absence of any
such evidence, Monarrez argues, the district court had to accept
the factual allegations and reasonable inferences in his complaint
as true. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600
(explaining that in reviewing a grant of summary judgment, the
court must view ‚the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party‛
(citation and internal quotation marks omitted)). And Monarrez
contends, because the only reasonable inference to be drawn
from his allegation that the Doe defendants were ‚construction
companies and/or their employees‛ was that they were not
governmental entities, the court could not enter summary
judgment in favor of the Doe defendants because the provisions
of the GIAU do not govern them.

¶43 UDOT argues that Monarrez’s complaint does more than
identify the Doe defendants as ‚construction companies and/or
their employees‛ because the statement of facts section of the

20130378-CA 22 2014 UT App 219
 Monarrez v. Utah Department of Transportation

complaint describes the construction workers as ‚employed by the
Utah Department of Transportation (UDOT)‛ or if ‚not
employed by UDOT,‛ then within the ‚control[] and direct[ion of]
. . . UDOT in such a way that UDOT should be vicariously liable
for their actions.‛ (Emphasis added.) Therefore, UDOT contends,
Monarrez’s failure to comply with the GIAU’s Limitations
Provision barred his claims against the Doe defendants as well.

¶44 Even if we accept Monarrez’s contention that his
complaint only identifies the Doe defendants as ‚construction
companies and/or their employees‛ without linking them to the
‚construction workers‛ he identifies as ‚employed by . . .
UDOT‛ or within its control, we cannot identify a claim against
a non-governmental entity in his complaint. See Canfield v. Layton
City, 2005 UT 60, ¶ 14, 122 P.3d 622 (explaining that although
Utah has adopted a liberal notice pleading standard, the
complaint must at least contain a ‚short and plain statement‛
that ‚give*s+ the defendant fair notice of the nature and basis or
grounds of the claim,‛ the type of litigation involved, and the
relief sought (citations and internal quotation marks omitted)).
Monarrez does not allege any activities by the Doe defendants in
his statement of facts. Rather, he refers generically to ‚the
construction workers‛ as the ones responsible for ‚repairing the
cracks in the road.‛ He then follows that statement of fact with
the allegation that the ‚construction workers were employed by
. . . UDOT‛ or if ‚not employed by UDOT, their activities were
controlled and directed by UDOT.‛ A subsequent allegation
suggests that ‚the slick road conditions resulted from something
put on the road by the construction workers.‛ But even if by its
placement after the statements that the construction workers
were employed by UDOT or subject to UDOT’s control,
Monarrez intended that this allegation be a reference to the Doe
defendants, he does not assert that the Doe defendants had any
duty to him separate from UDOT’s for which they might be
liable. For instance, in his negligence claim for relief, Monarrez
states only that ‚UDOT has a duty to ensure highway safety.‛
Similarly, in his negligent supervision and/or hiring claim for
relief, Monarrez asserts that it was ‚the State of Utah’s

20130378-CA 23 2014 UT App 219
 Monarrez v. Utah Department of Transportation

negligence in hiring, supervising, or retaining the employees
and/or contracted construction companies [that] proximately
caused *his+ injuries.‛

¶45 Thus, Monarrez’s complaint, when read as a whole, does
not separate out the Doe defendants from UDOT, a
governmental entity that can only be sued after a claimant has
complied with the requirements of the GIAU. Therefore, UDOT
and the district court properly relied on Monarrez’s own
allegations in the complaint that suggested that all of the
activities for which Monarrez was seeking relief were conducted
by UDOT, its employees, or persons within its control. See
Baldwin v. Vantage Corp., 676 P.2d 413, 415 (Utah 1984) (‚An
admission of fact in a pleading is a judicial admission and is
normally conclusive on the party making it.‛). See generally
Myers v. Trendwest Resorts, Inc., 100 Cal. Rptr. 3d 658, 666 (Ct.
App. 2009) (‚In moving for summary judgment, a party may
rely on the doctrine of judicial admission by utilizing allegations
in the opposing party’s pleadings to eliminate triable issues of
material fact.‛). Monarrez concedes that the ‚only ‘pleadings’‛
in which the status of the Doe defendants’ employment was
discussed ‚were the complaint and the answer.‛ See Utah R. Civ.
P. 56(c) (explaining that summary judgment may be granted
when ‚the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact‛). The
district court’s grant of summary judgment dismissing claims
against the Doe defendants as falling under the umbrella of
UDOT’s liability was therefore correct.

CONCLUSION

¶46 We affirm the district court’s interpretation of the
Limitations Provision of the GIAU. Because we have concluded
that the plain language of the Limitations Provision is
unambiguous and that its retroactive application does not result

20130378-CA 24 2014 UT App 219
 Monarrez v. Utah Department of Transportation

in substantial injustice, we reject Monarrez’s contention that this
interpretation should be applied prospectively only. We have
also rejected Monarrez’s estoppel claim because there were no
inconsistent statements by UDOT upon which Monarrez could
have reasonably relied. Accordingly, we uphold the grant of
summary judgment. Summary judgment was appropriate as to
the Doe defendants as well as UDOT because the pleadings do
not demonstrate that Monarrez had stated any separate claims
against the Doe defendants as non-governmental entities.

______________

VOROS, Judge (dissenting):

¶47 I respectfully dissent. Given the circumstances of this case
and the state of the law until today, I would accord today’s
ruling only prospective effect.

¶48 Monarrez contends that, under the circumstances of this
case, we should apply our interpretation of the Limitations
Provision prospectively only. He asserts that the statutory
question we decide today has never before been addressed by
our courts and that given case law interpreting equivalent
provisions in the APA and GRAMA, the language of the GIAU
was not sufficiently clear to inform him that a complaint filed
within one year of the actual denial but more than one year past
the deemed-denied date would be barred as untimely.

¶49 ‚The general rule from time immemorial is that the ruling
of a court is deemed to state the true nature of the law both
retrospectively and prospectively.‛ Malan v. Lewis, 693 P.2d 661,
676 (Utah 1984). Though apparently ancient, the rule is ‚general‛
and not inviolable: we have discretion to depart from it when
retroactive application will result in ‚substantial injustice.‛ Id.
Our supreme court ‚has developed a sound theoretical
framework for determining when a new rule of law in a civil
case will be applied retroactively.‛ Kennecott Corp. v. State Tax
Comm’n of Utah, 862 P.2d 1348, 1352 (Utah 1993). Resolution of

20130378-CA 25 2014 UT App 219
 Monarrez v. Utah Department of Transportation

the retroactivity question depends on ‚an appraisal of the
relevant judicial policies.‛ Id. Thus,

we look to the impact retroactive application
would have on those affected. When we conclude
that there has been justifiable reliance on the prior
state of the law or that the retroactive application
of the new law may otherwise create an undue
burden, the court may order that a decision apply
only prospectively.

Id. (citation and internal quotation marks omitted). In my
judgment, these policies favor prospective application of today’s
decision.

¶50 Until today, no Utah court had examined the Limitations
Provision in the context of a twice-denied notice of claim. I
consider the legal question a close call. On balance I agree with
the majority that the text of the Limitations Provision specifies
that the time for filing a complaint begins either when the notice
of claim is affirmatively denied within the sixty-day period or
when the notice of claim is deemed denied at the expiration of
that period. However, the ‚prior state of the law‛ in this general
area consisted of two supreme court cases interpreting similar
provisions of the APA and GRAMA and reaching a contrary
result. See id.; see also Young v. Salt Lake County, 2002 UT 70, ¶¶ 6–
11, 52 P.3d 1240; Harper Invs., Inc. v. Auditing Div., Utah State Tax
Comm’n, 868 P.2d 813, 185–16 (Utah 1994). Though we
distinguish those cases based on statutory differences,
reasonable minds might see those statutes and this one as more
similar than different and so apply that case law. Furthermore,
UDOT itself created the conundrum by sending the denial letter
after the deemed-denied date. Although we agree with UDOT
that its denial letter lacked legal significance, a reasonable
person acquainted with the caselaw might have been justified in
treating that letter as legally significant.

20130378-CA 26 2014 UT App 219
 Monarrez v. Utah Department of Transportation

¶51 In sum, given the uncertainty resulting from the status of
the law and UDOT’s own acts, retroactive application of the
Limitations Provision here would place an undue burden on
Monarrez and result in substantial injustice. See Kennecott Corp.,
862 P.2d at 1352; see also Hathaway v. State ex rel. Medical Research
& Tech. Auth., 2002 OK 53, ¶ 15, 49 P.3d 740 (stating that where
‚the dispositive rule of law on the point in controversy was far
from settled, fundamental fairness‛ required that the court’s
opinion ‚be accorded purely prospective effect‛).

¶52 I would accordingly reverse.

______________

20130378-CA 27 2014 UT App 219