Solis v Burningham Enterprises, Inc.

The district court ruled Solis failed to disclose her intent to use a state trooper as both fact and expert witness and bared his testimony as to the origin of a skid mark. The panel affirmed. It held that failure to comply with the requirements of Utah rule of Civil Procedure 26(a)(3)(A) means the expert may not testify. It noted that precedent prohibits designating a physician as a fact witness then trying to use the physician as an expert. The same reasoning applied here and there was no error. The panela also held the failure to disclose was not harmless as Burningham’s attorneys would have questioned the trooper differently at deposition and deposed other witnesses relied upon by the trooper. It finally held that Solis could have met the deadlines for disclosure and failed to provide any good faith basis to excuse her failure.

Hemmingway v Construction by Design Corporation

Hemmingway’s insurer paid for damages to his home including the kitchen area which Construction by Design was remodeling. The insurer sued Construction by design for reimbursement pursuant to a subrogation clause in the insurance contract. The district court granted summary judgment to Construction by Design ruling a waiver provision in the remodeling contract barred recovery. The panel reversed and remanded. It held that there is a genuine issue of material fact as to whether Hemmingway intended the existing homeowners policy to cover the remodel or if Hemmingway intended to buy a separate policy and simply breached the remodel agreement. The panel noted that the waiver provision would only come into play if a policy covering the remodel was in place. It therefore held the issue of whether waiver provisions in remodel and similar contracts bar all recovery by insurers or just recovery for the area being built or remodeled was not ripe and the panel declined to adopt a rule on the issue. The case was remanded for further proceedings.