Kubiak v. Pinson

461 P.3d 1151

Janet M. KUBIAK, Appellant,

v.Melinda H. PINSON, Appellee.

No. 20190155-CA

Court of Appeals of Utah.

Filed March 19, 2020

Leonard E. McGee, Salt Lake City, and Peter R. Mifflin, Attorneys for Appellant

Kathryn T. Smith, Salt Lake City, Attorney for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.

Opinion

MORTENSEN, Judge:

¶1 Janet M. Kubiak sued Melinda H. Pinson for injuries Kubiak claimed she suffered as a result of an automobile accident. As allowed by Utah law, Kubiak elected to pursue her claims via arbitration. Unsatisfied with the result of the arbitration proceeding, Kubiak sought a de novo jury trial in the district court. The jury found Pinson negligent in causing the accident and some of Kubiak’s claimed injuries, but it also found that the medical expenses resulting from the accident were less than $3,000. Based on this finding, the district court entered a judgment of no cause of action. Kubiak appeals, claiming that the district court erroneously denied her motion for summary judgment filed prior to trial and further erred in precluding evidence of Pinson’s insured status at trial. We affirm.

BACKGROUND

¶2 Kubiak lived in Michigan but was visiting Utah on July 2, 2012 when Pinson’s vehicle rear-ended Kubiak’s rental vehicle. The rear-end collision left scratches on the bumper of Kubiak’s vehicle. No one received medical treatment at the scene of the accident. The next day, Kubiak returned to Michigan and initiated medical treatment. According to Kubiak, she incurred approximately $30,000 in medical expenses to treat injuries related to the accident. All of those medical expenses were paid by her automobile insurer under her personal injury protection (PIP) benefits coverage.

¶3 In September 2014, Kubiak filed suit against Pinson, seeking recovery for her personal injuries and opting to pursue arbitration under Utah Code section 31A-22-321.¹ See Utah Code Ann. § 31A-22-321 (LexisNexis 2017).² Unhappy with the arbitration results, Kubiak requested a trial de novo in the district court. Kubiak moved for summary judgment, claiming that Pinson admitted liability by pleading an alternative affirmative defense for a set-off against any recovery by the amount of the PIP benefits paid to Kubiak. Pinson did not contest the facts asserted by Kubiak, but opposed the motion by arguing, that as a matter of law, there was no admission and Kubiak had failed to establish that Pinson was liable. The district court denied Kubiak’s motion, observing that Kubiak’s "argument is faulty. ... [Pinson] has not admitted fault. The mere assertion of a set-off ... does not foreclose a determination of fault."

¶4 Before trial, Kubiak submitted a motion in limine seeking to admit certain insurance evidence. Pinson opposed the motion, arguing the admission of such evidence was contrary to rule 411 of the Utah Rules of Evidence. The district court denied the motion. At trial, Kubiak again sought to introduce the insurance evidence to rebut Pinson’s expert testimony alleging that Kubiak was motivated by secondary gain.³ The court again declined to admit the insurance evidence.

¶5 At the conclusion of trial, the jury found Pinson was negligent and caused at least some of Kubiak’s injuries, but also found that the medical expenses caused by the accident were less than $3,000. Based upon the requirements of Utah Code section 31A-22-309,⁴ the district court entered a judgment of no cause of action and dismissed Kubiak’s claims. Kubiak appeals.

ISSUES AND STANDARDS OF REVIEW

¶6 Kubiak raises two issues on appeal. First, she contends the district court erred in denying her motion for summary judgment.⁵ The "denial of summary judgment presents a question of law and is reviewed for correctness." Liley v. Cedar Springs Ranch Inc. , 2017 UT App 166, ¶ 11, 405 P.3d 817. Upon review, "all facts and the reasonable inferences to be made therefrom" are construed in a light favorable to the nonmoving party. Colosimo v. Gateway Cmty. Church , 2018 UT 26, ¶ 24, 424 P.3d 866 (cleaned up).

¶7 Second, Kubiak contends the district court erred in excluding "evidence of insurance." "We review a [district] court’s exclusion of evidence for an abuse of discretion." Daniels v. Gamma West Brachytherapy, LLC , 2009 UT 66, ¶ 36, 221 P.3d 256 (cleaned up).

ANALYSIS

I. Summary Judgment

¶8 In response to Kubiak’s motion for summary judgment, the district court ruled that an affirmative defense raised by Pinson for a set-off against any recovery by the amount of the PIP benefits paid to Kubiak by her insurer did not constitute an admission of liability by Pinson and accordingly denied Kubiak’s motion.⁶ Kubiak challenges this conclusion by reasserting two positions on appeal. Kubiak contends that the court erred in denying her motion, arguing that an alternative affirmative defense of set-off constitutes an admission of liability. Kubiak alternatively contends that the district court erred by not granting summary judgment in her favor based on certain statements of fact, present in her motion, that were undisputed in Pinson’s responsive pleading.⁷

¶9 "Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Hone v. Advanced Shoring & Underpinning, Inc. , 2012 UT App 327, ¶ 6, 291 P.3d 832 (cleaned up); see Utah R. Civ. P. 56(a).

A. Assertion of Alternative Affirmative Defense

¶10 In her answer, Pinson first asserted that she was not liable and second and alternatively she asserted that if she were found liable generally, she could not be held responsible—as a matter of statutory law couched in terms of a set-off—for any amounts which had been paid by Kubiak’s PIP coverage. Kubiak asserts that it "makes no sense to allow ... the inconsistent positions" given the "existing obligation" of Pinson’s insurer to reimburse Kubiak’s insurer.

¶11 Utah law unequivocally allows a party to assert defenses "in the alternative," and a "pleading is not made insufficient by the insufficiency of an alternative statement." Utah R. Civ. P. 8(e). Further, a "party may state ... legal and equitable defenses regardless of consistency." Id. ; see also Helf v. Chevron U.S.A. Inc. , 2015 UT 81, ¶ 74, 361 P.3d 63 (explaining that Utah’s modern pleading rules permit inconsistent defenses). Accordingly, the assertion of an affirmative defense in the alternative will not serve as an admission of liability. See Utah R. Civ. P. 8(e).

¶12 Pinson’s claim to a set-off for the amount of the PIP payments was made as an affirmative defense in the alternative. As such, it was not an admission of liability. Affirmative defenses serve to satisfy "the pleading rules ... that ... the parties are entitled to ... notice of the issues raised and an opportunity to meet them." Jones, Waldo, Holbrook & McDonough v. Dawson , 923 P.2d 1366, 1374 (Utah 1996) (cleaned up); see also Utah R. Civ. P. 8 advisory committee’s note (observing that the general approach of the rule is to require "each party to disclose its affirmative case early in the process so that the adversary might evaluate its merits and focus the need for discovery"). Pinson’s answer appropriately alerted Kubiak that in the event Pinson were found liable for the accident, Pinson would take the position that the damages for which she may be responsible would not include those already covered by Kubiak’s PIP benefits.

¶13 Because Pinson’s alternative affirmative defense was not an admission of liability, the court correctly concluded that Kubiak was not entitled to judgment as a matter of law.

B. Undisputed Facts in the Summary Judgment Motion

¶14 Kubiak asserted the following relevant facts to support the claim of negligence against Pinson:

2. On July 2, 2012, ... Pinson rear-ended the plaintiff ....

....

4. [Kubiak] first noticed she was injured from the accident, while still in Utah with feelings of stiffness and soreness.

....

9. Plaintiff’s some of the plaintiff’s [sic] medical expenses were paid under her Michigan [PIP] benefits.

10. [Kubiak] received at least $30,000 in Michigan [PIP] benefits in connection with injuries sustained in this Utah accident.

....

12.... Pinson has claimed an offset in her answer for PIP benefits paid to [Kubiak].

Pinson did not dispute these facts in her response to the summary judgment motion. Kubiak asserts that the undisputed facts entitled her to summary judgment.

¶15 A movant who bears the burden of proof at trial must establish each element of her claim to show that she is entitled to judgment as a matter of law. Orvis v. Johnson , 2008 UT 2, ¶ 10, 177 P.3d 600. To succeed on her claim for negligence, Kubiak needed to prove that (1) Pinson owed her a duty of care, (2) Pinson breached that duty, and (3) the breach proximately caused (4) Kubiak to suffer legally compensable damages. See Wood v. United Parcel Service Inc. , 2019 UT App 168, ¶ 8, 453 P.3d 949.

¶16 At most, the undisputed facts establish that Pinson’s vehicle struck the rear of Kubiak’s vehicle, Kubiak experienced some injury as a result of the accident, at least $30,000 was paid to Kubiak in PIP benefits, and Pinson claimed a set-off for the PIP benefits in the event that she were to be found liable. These facts, however, do not entirely establish the requisite elements of a negligence claim. The facts do not identify who breached a duty or how it was breached. The facts do not even generally assert how the accident occurred. The rear-end collision could have been caused by any number of factors, including negligent conduct by either party.⁸ Viewed in a light most favorable to Pinson, the facts merely established that the accident occurred—a factual position that is insufficient to establish the negligence elements of breach and cause.

¶17 Additionally, the facts recited by Kubiak in her summary judgment motion—even if deemed undisputed—do not establish what damages are sought from...