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Wickert: How to Sue Yourself and Win

  • State: Utah

The American horror film “Split,” directed by M. Night Shyamalan, is a psychological thriller that centers on a bizarre antagonist with 23 separate personalities. Without spoiling the plot, suffice it to say that it focuses on the fact that there is something to the adage “mind over matter.”

Gary L. Wickert

Gary L. Wickert

They say that life imitates art. If you prefer Woody Allen’s slant on it, “Life doesn’t imitate art, it imitates bad television.” Both statements appear to be true in a growing number of cases where personal representatives in death cases are actually being allowed to sue themselves in order to prosecute a wrongful death or survival action following the work-related death of an employee. It’s enough to make your head spin.

In a 2016 Utah Supreme Court decision styled Bagley v. Bagley, Barbara Bagley, the wife of an accident victim, was allowed to sue herself for negligently causing the death of her husband and simultaneously win and lose.

Bagley was the common-law wife of the decedent, Bradley Vom Baur. On Dec. 27, 2011, Barbara was driving their 2000 Range Rover when she lost control and flipped the vehicle. Bradley was thrown from the vehicle and sustained several severe injuries, dying 10 days later. Barbara, acting in her capacity of sole heir and personal representative of her husband’s estate, sued herself as the individual causing Bradley’s death, seeking damages under the wrongful death and survival action statutes. She sought damages personally and also to satisfy creditors of her husband’s estate.

The district court dismissed her lawsuit, concluding that the plain language of the statutes and certain public policies precluded a person from simultaneously acting as plaintiff and defendant in a wrongful death or survival action suit, regardless of the capacity in which that person was acting. The Court of Appeals reversed, concluding that the statutes unambiguously allow Bagley to maintain the lawsuit, and her automobile insurance carrier, State Farm, appealed to the Utah Supreme Court.

The Utah Supreme Court agreed with the Court of Appeals, noting that the public policies cited by the district court (policies that Bagley in her individual capacity invokes on appeal) dealt with the separate issue of whether an heir or personal representative who is negligent in his or her individual capacity and is permitted to sue for damages under the wrongful death and survival action statutes can, nevertheless, as an heir, recover money paid as damages from such a suit.

That issue, however, was not before them on appeal. Instead, Bagley sued pursuant to § 78B-3-106 (Utah’s wrongful death statute), claiming that, as a defendant, she caused her husband’s death, depriving herself of his love, companionship, society, comfort, support and affection, and also sued pursuant to § 78B-3-107 (Utah’s survival action statute), claiming her husband’s surviving damages for pain and suffering, funeral expenses and medical expenses.

The Supreme Court decided that neither the wrongful death statute nor the survival action statute precludes a person acting in the capacity of an heir or personal representative (a separate legal “personality,” if you will) from suing herself for negligently causing the death of a family member, for which she is also a plaintiff.

As defendant, Bagley (through her insurance company) argued that the wrongful death statute precluded her as her husband’s heir and personal representative from bringing suit against herself for damages as the tortfeasor driving the vehicle. As plaintiff, Bagley argued that neither statute precluded her from simultaneously acting as a plaintiff heir or personal representative and defendant tortfeasor.

Amazingly, Bagley won and lost simultaneously. The Supreme Court agreed with Bagley the plaintiff against Bagley the defendant. Beam me up, Scotty.

Utah’s wrongful death statute allows the dependent “heir” (as opposed to the “estate”) of a decedent to recover lost wages of the decedent, medical expenses and damages for the emotional toll of the loss on the family members. Utah’s survival statute allows the deceased’s estate to assert a claim for the decedent’s injuries before he died.

In a survival action, the estate is allowed to recover for the decedent’s (as opposed to the living family members) pain and suffering from the time of the injury until death, as well as the economic losses suffered by the decedent. Essentially, the law allows the estate to “take over” the personal injury claim that the decedent had until he died.

The issue before the Utah Supreme Court was whether the Court of Appeals correctly interpreted §§ 78B-3-106 (wrongful death statute) and 78B-3-107 (survival statute) of the Utah Code as allowing a person acting in the legal capacities of an heir and personal representative to sue him or herself for damages as a defendant tortfeasor.

The Supreme Court made a very literal interpretation of the Utah wrongful death statute, which reads:

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.

The Utah survival statute reads:

[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).

The Supreme Court noted that the best evidence of the Legislature’s intent is the plain language of the statute itself. In looking at the language of the statutes, a court looks first to the plain language. In so doing, it presumes that lawmakers used each word advisedly and that the expression of one term should be interpreted as the exclusion of another and presuming all omissions to be purposeful.

With this as its guide, the Supreme Court noted that, in reviewing the wrongful death statute, the absence of punctuation marks separating “death of a person” from “of another” signified that the two are connected and that they are separate from the other clauses in the statute. It decided that this statute uses the phrase “of another” to mean a person other than the decedent, logically indicating a legislative intent to exclude situations in which the decedent’s own wrongful act or neglect caused his death.

Similarly, in construing the survival statute, the Supreme Court noted that if it were to read “of another” in the way Bagley (as defendant) recommends, it would need to copy “of another” and paste it into the second sentence of the statute. The phrase “of another” does not appear in the same sentence as the list of people (personal representative included) who may bring a cause of action. Therefore, the court declined to read the statute in such a way as to prevent Bagley (as plaintiff), acting in the distinct legal capacity of personal representative plaintiff, from suing herself in her individual capacity as a defendant. 

In the eyes of many laypeople (and, in fact, of even many lawyers), this result seems absurd. Therefore, Bagley (as defendant) also argued something known as the “absurdity doctrine,” under which a court can reform the plain language of a statute to prevent a plaintiff from suing and recovering from himself or herself. But the Supreme Court said:

[P]ermitting a tortfeasor defendant to also act as a plaintiff heir or personal representative does not lead to an absurd result of sufficient magnitude to justify our rewriting the statutes to read as defendant prefers.

The court said it would not apply the absurdity doctrine unless “the operation of the plain language … [is] so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” The court also noted that Bagley (as defendant) did not properly preserve the absurd argument on appeal.

In summary, the Supreme Court held that the Court of Appeals did not err when it concluded that the wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury. It held that the plain language of both statutes permits such a lawsuit.

Further, the court felt that the literal terms of the statutes do not lead to an absurd result that would require modification to the statutory text. Absent a statutory gap, the court said it would not venture beyond the plain language of the statutes to rewrite them based on public policy. Therefore, Bagley wins, and Bagley loses.

If we pay Utah benefits to an injured employee who later dies due to the negligence of his or her spouse, we should be able to step into the shoes of the spouse as subrogee and sue that same spouse for negligence and recovery. Creative and aggressive subrogation tactics require us to think like a plaintiff’s lawyer, as difficult as that may be sometimes.

And there you have it. A Utah woman sued herself and simultaneously won and lost, taking home a nice check in the process. As subrogation insurance professionals, we may roll our eyes at the patent absurdity of such a result. However, we should also keep in mind taking advantage of every absurdity to our company’s benefit when it comes time to sue as a subrogated insurer and recover benefit dollars we are subrogated to.

Gary Wickert is a partner with the Matthiesen, Wickert & Lehrer law firm in Hartford, Wisconsin. This blog post is reprinted with permission.

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