2015 UT App 33
_________________________________________________________
THE UTAH COURT OF APPEALS
BARBARA BAGLEY AND THE ESTATE OF BRADLEY M. VOM BAUR,
Plaintiffs and Appellants,
v.
BARBARA BAGLEY,
Defendant and Appellee.
Opinion
No. 20131077-CA
Filed February 12, 2015
Third District Court, Salt Lake Department
The Honorable Paul G. Maughan
No. 130903840
Mark C. Rose and Reid Tateoka, Attorneys
for Appellants
Peter H. Christensen and Kathryn T. Smith,
Attorneys for Appellee
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
STEPHEN L. ROTH and KATE A. TOOMEY concurred.
PEARCE, Judge:
¶1 Barbara Bagley appeals from the district court’s ruling
that she is barred from maintaining two causes of action arising
out of an automobile accident that claimed her husband’s life.
The two plaintiffs in this case—the decedent’s heir and the
personal representative of his estate—brought a wrongful death
claim and a survival action against the driver alleged to have
caused the accident. Bagley finds herself on both sides of this
dispute because not only is she her husband’s heir and the
personal representative of his estate, she is also the defendant
driver whose negligence allegedly caused the accident. The
Bagley and Estate of Vom Baur v. Bagley
district court determined that the language of the wrongful
death and survival action statutes prevents a tortfeasor from
seeking recovery from herself and that the plaintiffs therefore
could not bring suit against the defendant. We conclude that the
plain language of the statutes does not bar such suits. We reverse
the dismissal of plaintiffs’ causes of action and remand for
further proceedings.
BACKGROUND
¶2 Barbara Bagley, acting in different capacities, appears as
both the appellants and the appellee in this case. Bagley
represents the estate of Bradley M. Vom Baur. She also appears
on her own behalf as Vom Baur’s heir. We refer to these two
roles collectively as Plaintiffs. Bagley is also the defendant and
alleged tortfeasor (Defendant). Defendant’s interests in this case
are represented by her insurance carrier.
¶3 On December 27, 2011, Vom Baur and Defendant were
driving in Nevada with Defendant at the wheel. Defendant lost
control of the vehicle causing it to flip. Vom Baur died as a result
of the injuries he sustained in the accident. Plaintiffs filed a
complaint against Defendant. Plaintiffs asserted two causes of
action: a wrongful death claim as Vom Baur’s heir, see Utah
Code Ann. § 78B-3-106 (LexisNexis 2012), and a survival action
on behalf of Vom Baur’s estate, see id. § 78B-3-107.
¶4 Defendant moved to dismiss for failure to state a claim
upon which relief could be granted. See Utah R. Civ. P. 12(b)(6).
The district court granted the motion without a hearing. The
court concluded that the phrase “of another,” present in both the
wrongful death and survival action statutes, “evidences an
intent to exclude recovery to heirs who have caused the
wrongful act or neglect leading to the death of the decedent.”
20131077-CA 2 2015 UT App 33
Bagley and Estate of Vom Baur v. Bagley
¶5 Although the district court explicitly stated that it was not
ruling on public policy grounds, it did note that the result it
reached comported with case law from other jurisdictions: “The
majority view [in other jurisdictions] is to disallow a negligent
beneficiary or sole survivor from effectively enriching him or
herself through the assertion of a wrongful death or survival
action or some combination of the same.” (Citing Davenport v.
Patrick, 44 S.E.2d 203 (N.C. 1947); Tanski v. Tanski, 820 P.2d 1143
(Colo. App. 1991); In re Chase Estate, 44 Pa. D. & C. 3d 34 (Pa.
Orphans’ Ct. 1987)). But see Rozewski v. Rozewski, 46 N.Y.S.2d 743,
745 (N.Y. Sup. Ct. 1944) (determining that New York law did not
bar a widower’s survival action suit after he caused the car
accident in which his wife died despite “the fact that the plaintiff
not only would be the sole beneficiary of any recovery obtained,
[and] the accident allegedly occurred wholly because of his own
negligence” (emphases in original)); Strickland v. Atlantic Coast
Line R.R. Co., 194 So. 2d 69, 71 (Fla. Dist. Ct. App. 1967) (noting
that, under Florida’s Wrongful Death Act, a widower did not
forfeit his cause of action despite causing the car accident in
which his wife died, because his actions were negligent and not
intentional).
ISSUES AND STANDARD OF REVIEW
¶6 Plaintiffs contend that the district court erred in
interpreting the wrongful death and survival action statutes.
“We review a district court’s interpretation of a statute for
correctness.” H.U.F. v. W.P.W., 2009 UT 10, ¶ 19, 203 P.3d 943.
ANALYSIS
¶7 The question before this court is whether the plain
language of the wrongful death and survival action statutes bars
a tortfeasor from bringing an action against herself for damages
if she asserts those causes of action in her capacity as an heir or
20131077-CA 3 2015 UT App 33
Bagley and Estate of Vom Baur v. Bagley
as the personal representative of the decedent’s estate.1 “*W+hen
interpreting statutes, our primary goal is to evince the true intent
and purpose of the [Utah] Legislature.” State v. Maestas, 2002 UT
123, ¶ 52, 63 P.3d 621 (citation and internal quotation marks
omitted). “The plain language of the statute provides us with the
road map to the statute’s meaning, helping to clarify the intent
and purpose behind its enactment.” Id.; see also Riggs v. Georgia-
Pacific LLC, 2015 UT 17, ¶¶ 10–11 (analyzing the wrongful death
statute according to its plain language). We read statutory
language so as to render all parts of the statute relevant and
meaningful, and we presume the Legislature used each term
within the statute advisedly and according to its ordinary
meaning. Maestas, 2002 UT 123, ¶ 52.
¶8 Plaintiffs contend that there is no language in either
statute that precludes any type of heir or personal representative
from maintaining a suit. Defendant responds that the Legislature
deliberately employed the phrase “of another” in each statute to
exclude recovery by negligent heirs or personal representatives.
Defendant further argues that had the Legislature intended
negligent heirs to recover, the statute would contain express
language to that effect.
1. Utah law limits the ability of a plaintiff to recover when that
plaintiff bears some fault for an injury or death. Those limits do
not appear in the wrongful death or survival action statutes but
are found in the comparative fault statute. See Utah Code Ann.
§§ 78B-5-818 to -820 (LexisNexis 2012). The parties did not ask
the district court to address the comparative fault statute and did
not brief it on appeal. We express no opinion on how that statute
might apply to this case and confine our analysis to whether the
wrongful death or survival action statutes mandate dismissal of
Plaintiffs’ claims.
20131077-CA 4 2015 UT App 33
Bagley and Estate of Vom Baur v. Bagley
¶9 The wrongful death statute provides, in pertinent part,
Except as provided in Title 34A, Chapter 2,
Workers’ Compensation Act, when the death of a
person is caused by the wrongful act or neglect of
another, his heirs, or his personal representatives
for the benefit of his heirs, may maintain an action
for damages against the person causing the death,
or, if the person is employed by another person
who is responsible for his conduct, then against the
other person.
Utah Code Ann. § 78B-3-106(1) (LexisNexis 2012) (emphasis
added).
¶10 Defendant urges us to read “of another” to mean
someone other than the decedent’s heirs and personal
representatives. Read this way, heirs could not recover if they or
the personal representative negligently caused the death of the
decedent.2 However, the absence of punctuation marks
separating “death of a person” from “of another” signifies that
the two are connected and that they are separate from the other
clauses in the statute. Plainly read, section 106 uses the phrase
“of another” to mean a person other than the decedent. This
reading evidences a legislative intent to exclude situations in
which the decedent’s own wrongful act or neglect caused his
death. Cf. Van Wagoner v. Union Pacific R.R. Co., 186 P.2d 293, 303
(Utah 1947) (explaining that the then-current version of the
wrongful death statute did not permit recovery “where the
2. The wrongful death and survival action statutes both utilize
the term “heirs” as a category encompassing the decedent’s
spouse, children, parents, and stepchildren. See Utah Code
Ann. § 78B-3-105 (LexisNexis 2012).
20131077-CA 5 2015 UT App 33
Bagley and Estate of Vom Baur v. Bagley
deceased either solely or proximately contributes negligently to
his own death”).
¶11 We conclude that the statute consists of two operative
components: the first defines the circumstances that will trigger
the statute, and the second sets forth the legal result. Put another
way, the statute contains “if” and “then” clauses. The “if” clause
limits the applicability of the wrongful death statute to times
“when the death of a person is caused by the wrongful act or
neglect of another”; that is, someone other than the decedent.
Once the “if” clause is satisfied, the “then” clause provides that
the decedent’s “heirs, or his personal representatives for the
benefit of his heirs, may maintain an action for damages against
the person causing the death.” See Utah Code Ann. § 78B-3-
106(1); see also Riggs, 2015 UT 17, ¶ 11. In short, section 106 does
not, by its express language, bar an heir or personal
representative from filing a wrongful death claim even if the
death was caused by the wrongful act or neglect of the heir or
personal representative.
¶12 We consider next whether the survival action statute
allows the personal representative to seek damages on behalf of
the estate from a tortfeasor personal representative. The survival
action statute provides, in pertinent part,
A cause of action arising out of personal injury to a
person, or death caused by the wrongful act or
negligence of another, does not abate upon the
death of the wrongdoer or the injured person. The
injured person, or the personal representatives or
heirs of the person who died, has a cause of action
against the wrongdoer or the personal
representatives of the wrongdoer for special and
general damages, subject to Subsection (1)(b).
20131077-CA 6 2015 UT App 33
Bagley and Estate of Vom Baur v. Bagley
Utah Code Ann. § 78B-3-107 (emphasis added).3
¶13 Defendant argues that the phrase “of another” must mean
someone other than “the injured person, or the personal
representatives or heirs of the person who died.” But “of
another” does not appear in the same sentence as the list of
people who may bring a cause of action. To read “of another” as
Defendant urges would require us to transpose a limiting phrase
from the first sentence and apply it to a list in the second. Doing
so would contravene a plain reading of the statute.
¶14 Read plainly, section 107’s scope is limited to
circumstances where a person is injured or killed “by the
wrongful act or negligence of another.” The phrase “of another”
is contained in the first sentence to explain that section 107 does
not apply when the death is caused by the decedent’s own
wrongful act or negligence. Consequently, the plain language of
section 107 does not bar an heir or personal representative from
maintaining causes of action against tortfeasors who caused the
injury or death, even if the tortfeasor is the heir or personal
representative.
¶15 Our understanding of sections 106 and 107 is reinforced
by the language the Legislature used in section 106.5 of the same
chapter. That statute explicitly contemplates a negligent heir
seeking to become the estate’s personal representative:
3. The survival action statute has since been amended, and this
sentence now reads, “A cause of action arising out of a personal
injury to a person, or death caused by the wrongful act or
negligence of a wrongdoer, does not abate upon the death of the
wrongdoer or the injured person.” Utah Code Ann. § 78B-3-107
(LexisNexis 2014) (emphasis added). Neither party has argued
that this change should be material to our analysis.
20131077-CA 7 2015 UT App 33
Bagley and Estate of Vom Baur v. Bagley
(1) “Presumptive personal representative” means:
(a) the spouse of the decedent not alleged to have
contributed to the death of the decedent;
(b) if no spouse exists, the spouse of the decedent is
incapacitated, or if the spouse of the decedent is alleged
to have contributed to the death of the decedent, then an
adult child of the decedent not alleged to have
contributed to the death of the decedent . . . .
Utah Code Ann. § 78B-3-106.5 (emphases added).4
¶16 In section 106.5, the Legislature expressly excluded
spouses alleged to have contributed to the death of the decedent
from the category of presumptive personal representatives. This
exclusion indicates that the Legislature recognized the
possibility of an heir or personal representative being
responsible for the injury or wrongful death of the decedent.
Furthermore, the language in section 106.5 demonstrates how
the Legislature might have phrased an express prohibition had it
intended to incorporate one into section 106 or section 107.
However, since the enactment of section 106.5 in 2008, the
Legislature has amended both sections 106 and 107 without
adding language barring negligent heirs or personal
representatives from bringing those causes of action. We
interpret the absence of such language from sections 106 and 107
as an expression of legislative intent, particularly in light of the
recent amendment of section 107. See supra ¶ 12 n.4.
¶17 Defendant argues that this reading infuses the statute
with a meaning that is “contrary to . . . basic notions of fairness
and decency” and contrary to public policy. Defendant does not
define the contours of the public policy she would have this
4. The decision to appoint Bagley as personal representative of
Vom Baur’s estate is not before us on appeal.
20131077-CA 8 2015 UT App 33
Bagley and Estate of Vom Baur v. Bagley
court apply, nor does she provide citation to where such a policy
has been articulated by Utah statute or case law.5 We decline the
invitation to allow notions of what the public policy might be to
animate our analysis.
¶18 The Utah Supreme Court has instructed that, “in most
instances, our proper role when confronted with a statute should
be restricted to interpreting its meaning and application as
revealed through its text.” Rothstein v. Snowbird Corp., 2007 UT
96, ¶ 10, 175 P.3d 560. “To pluck a principle of public policy from
the text of a statute and to ground a decision of this court on that
principle is to invite judicial mischief.” Id. “[T]he theory of
public policy embodies a doctrine of vague and variable quality,
and, unless deducible in the given circumstances from
5. Instead, Defendant cites a number of cases from outside of
Utah. None of these cases interprets Utah law or sheds any light
on what the Utah Legislature intended when it crafted the
statutes at issue here. Instead, the cases ground their analyses in
the public policy of their respective states. See, e.g., Tanski v.
Tanski, 820 P.2d 1143, 1145 (Colo. App. 1991) (“*W+e conclude . . .
that the public policy of Colorado prohibits a plaintiff from
recovering damages for a wrongful death he or she has
negligently caused . . . .”); Commercial Union Ins. Co. v. Pelchat,
727 A.2d 676, 681–82 (R.I. 1999) (“Just as the public policy of this
state would be offended if we were to allow an intentional
wrongdoer to benefit from his or her malfeasance, it would be
equally offended if we were to allow a negligent wrongdoer to
benefit from his or her own wrongful act.”). None of these cases
speaks to the precise language of the Utah statutes or addresses
the potential interplay between the wrongful death or survival
action statutes and the Utah comparative fault statute. More
importantly, however, Defendant has not provided us with any
justification for looking beyond the plain language of the
statutes.
20131077-CA 9 2015 UT App 33
Bagley and Estate of Vom Baur v. Bagley
constitutional or statutory provisions, should be accepted as a
basis for judicial determinations, if at all, only with the utmost
circumspection.” Id. (citation and internal quotation marks
omitted). If the plain language of the wrongful death and
survival action statutes is misaligned with public policy, it is the
province of the Legislature to realign them. 6
CONCLUSION
¶19 The plain language of the wrongful death and survival
action statutes does not bar an heir or personal representative
from pursuing those causes of action even when the heir or
personal representative is the defendant tortfeasor. The district
court therefore erred by dismissing those causes of action. We
reverse the district court’s dismissal and remand for further
proceedings consistent with this opinion.
6. Defendant’s plea to consider “basic notions of fairness and
decency” could be interpreted as an invocation of the absurd-
result doctrine. The Utah Supreme Court has noted a “well-
settled caveat to the plain meaning rule [that] states that a court
should not follow the literal language of a statute if its plain
meaning works an absurd result.” Savage v. Utah Youth Village,
2004 UT 102, ¶ 18, 104 P.3d 1242. The application of this doctrine
is limited to those circumstances where “the result is so absurd
that *the Legislature+ could not possibly have intended it.” In re
Z.C., 2007 UT 54, ¶ 12, 165 P.3d 1206. Defendant has not
demonstrated that the Legislature could not possibly have
intended the result the plain language of the statutes dictates.
Nor does Defendant address the potential of the comparative
fault statute to serve as the mechanism to address the ability of
an allegedly at-fault plaintiff to recover.
20131077-CA 10 2015 UT App 33