(Concurring and Dissenting).
I concur with the majority’s statement of' the legal standard for determining whether a party to an agreement has waived a right to demand arbitration: Both substantial participation to a point inconsistent with an intent to arbitrate and prejudice are required. These requirements are consistent with Utah public policy favoring arbitration. Unfortunately, the way the majority applies this standard undermines this declared policy. Without addressing the first of these elements, I find that I cannot agree that the evidence of prejudice is sufficient to support a finding that, as a matter of law, the second element is satisfied.
Regarding the standard of review, I find the majority’s position puzzling. The trial court made no factual findings on disputed evidence in determining that the standard *362for waiver was met, and there was no dispute as to the relevant facts. Therefore, we have no occasion to search for any substantial evidence that might support a trial court’s factual finding of prejudice. The trial judge was either correct in concluding that the uncontroverted facts satisfied the legal standard or he was not. There is no room here for the exercise of trial court discretion on this question. Yet the majority seems to apply a “clear error” standard to uphold the trial judge’s ruling. This appeal presents a plain question of law. Is the evidence sufficient to support a legal conclusion that both elements of waiver are present? See Page v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 806 F.2d 291, 294 (1st Cir.1986). I think not.
I proceed directly to the second element. Neither the majority nor plaintiffs are able to point to any real prejudice resulting from Blue Cross’s filing pleadings and participating in this litigation over the four and one-half months between the time it entered an appearance and the time it sought arbitration. And to put this matter in perspective, it must be noted that plaintiffs and defendants other than Blue Cross had been engaged in this litigation for one year before the Blue Cross defendants were made parties.
It is true that Blue Cross filed pleadings, but that fact certainly did not cause legally sufficient prejudice to plaintiffs. As for the discovery that the majority says Blue Cross “actively participated in” in the few months following its being joined as a party, Blue Cross was nothing more than a passive participant in depositions initiated by plaintiffs and directed primarily at Massachusetts Mutual. Respecting other discovery, it is hard to understand how plaintiffs were significantly prejudiced by having Blue Cross produce documents in response to plaintiffs’ request for production and answering plaintiffs’ interrogatories. And as for Blue Cross’s discovery requests directed to plaintiffs, they were never answered and there is no evidence in the record that plaintiffs expended any time or effort on them.
At bottom, all we have here is the passage of close to five months and the almost entirely passive participation of a newly joined party in ongoing litigation. I would hold that the articulated legal standard adopted by the court cannot be satisfied by such circumstances. I would reverse and remand with direction that the Blue Cross arbitration claim be addressed on its merits and that, to the extent an arbitration clause is binding on any of the parties, arbitration be ordered.
HOWE, Associate C.J., concurs in the concurring and dissenting opinion of , Justice ZIMMERMAN.