Kingston v State Farm Automobile Insurance Company

Kingston appealed summary judgment for State Farm in his claim for higher underinsured driver benefits under his auto policy and umbrella liability policy. The panel affirmed. It held that under the law in effect at the time of both the accident, the renewal of the policy and the filing of the complaint, the auto policy in question was not a “new policy” mandating the offer of underinsured benefits as the only change was the identity of the vehicle insured and eth coverage, premium and other terms were the same. The panel held the requirement to give a notice to policyholders about underinsured coverage was not retroactive as the legislature omitted retroactivity from the provision while including it as to other provisions in the 2012 amendments and applying it here would be absurd as state Farm had no way of knowing it would be required to give a notice that did not exist when the renewal was processed. The panel affirmed on the umbrella policy as Kingston failed to challenge one of two independent grounds for decision and in any event Kingston failed to provide adequate analysis of their argument and other jurisdictions have persuasively held that umbrella policies are different than automobile policies for underinsured coverage purposes.

State v McAusland

McAusland appealed his conviction for criminal nonsupport under Utah code 76-7-201. The panel affirmed holding the child’s mother’s testimony that she had to rely on state assistance and family support provided a sufficient basis to conclude the child was in needy circumstances or would have been but for the support. The panel rejected McAusland’s argument that mother’s waiver of back support should have resulted in acquittal given both McAusland and mother testified the waiver was done as part of a negotiation to restart support.

State v Gutierrez

Gutierrez appealed the revocation of probation in one of two probation sentences he was under arguing contacting the victim in the other case did not violate his probation in the other case. Under plain error review, the panel affirmed holding the no contact provision was apparently imposed as a term of both probation sentences and any error was not obvious to the district court. It held Gutierrez’s vagueness argument failed as his brief included no meaningful analysis of the issue.

In the interests of J.P., D.P. and F.P. (M.M. v State)

M.M. appealed the termination of parental rights. The panel affirmed holding her use of illegal drugs had made her unfit and she failed to take advantage of the services offered to her to become a fit parent.

State v Sanchez

Sanchez appealed the district court refusal to merge his assault and kidnapping convictions and refusal to charge the jury on merger. The panel affirmed. It held that merger was not appropriate as Sanchez dragged the victim nearly 60 feet from her sole source of assistance and then bit and hit victim. As the dragging and confining the victim in an apartment made the assault easier, was not inherent in the assault and thus had independent significance, merger was unavailable under Utah law. The panel affirmed the jury charge decision holding merger is a legal question for the court not a fact question for the jury.

Pentalon Construction, Inc. v Rymark Properties, LLC

Pentalon filed suit to foreclose its mechanic’s lien. Federal Deposit insurance Corporation, successor in interest to the bank which loaned Rymark money for the construction project, moved for summary judgment arguing the partially completed excavation did not put it on notice lienable work had commenced. The district court agreed and granted judgment to FDIC. The panel, 2-1, reversed and remanded. Applying the statute as it existed when the trust deed was filed by the bank, the majority held that nearly finishing the outline of the excavation was sufficient to put a reasonable lender on notice work had commenced. The majority noted this was consistent with the apparent universal rule in the United States that excavation gives notice. The majority refused to rule on Pentalon’s appeal of certain evidentiary rulings at summary judgment holding them not ripe given the remand and decline to reach FDIC’a alternate grounds as those arguments were stayed by the district court during the summary judgment process. The dissent argued that whether the work Pentalon completed at the time the trust deed was field qualifies as commencement of lienable work is a fact question and the majority improperly engaged in fact finding rather than leave the matter to a jury.