July 9, 2013, Utah Supreme Court Case Summaries

Utah Supreme Court

July 9, 2013

Union Pacific Railroad v. UDOT, 2013 UT 39, No. 20110326 (July 9, 2013)

ISSUES: Standard of Review for Agency Decisions, Sufficiency of Evidence Pertaining to Public Nature of a Railroad Crossing.

Justice Lee,

This case arises out of the classification of a public railroad crossing by the Utah Department of Transportation (UDOT). The classification was upheld on review by the Public Service Commission. We affirm, upholding the Commission’s determination that UDOT correctly classified the crossing as public in the absence of any formal abandonment or evidence indicating that the crossing is a new road that never became public.

At ¶ 1.

The Court outlines the background of this case; specifically, the history of the disputed railroad crossing and the Commission’s ruling that it is a public crossing.

At ¶¶ 2-11.

The Public Service Commission’s Jurisdiction

Before we consider the merits of this case, we first address the applicable standard of review. The parties offer competing formulations of the governing standard. Union Pacific frames the issue as a jurisdictional question of law. It identifies the question before us as “whether a crossing is private and thus not subject to the jurisdiction of UDOT,” and argues that the Commission’s de-termination “that the public right of way moved with the road on-to Union Pacific’s private right of way” was a “conclusion of law [that] should be” reviewed for correctness. Anderson Geneva, on the other hand, frames the issue as “[w]hether the Commission acted unreasonably in affirming UDOT’s classification of the crossing as public” and asserts that this is a mixed question involving the application of law to facts—a question on which the Commission’s determination merits deference.

We see the matter Anderson Geneva’s way. As a body “created by and deriv[ing] its powers and duties from statute,” UDOT has not only the regulatory powers expressly granted to it, but also those “which are clearly implied as necessary to the discharge of the duties and responsibilities imposed upon it.” Basin Flying Serv. v. Pub. Serv. Comm’n, 531 P.2d 1303, 1305 (Utah 1975). Under its governing statute, UDOT has “the power to determine and prescribe the manner . . . and the terms of installation, opera-tion, maintenance, use and protection . . . of each crossing of a public road or highway by a railroad or street railroad . . . and to alter or abolish any such crossing, [and] to restrict the use of such crossings.” UTAH CODE § 54-4-15(2). Implicit in this grant of authority over public railroad crossings is the authority to decide which crossings are public. In that sense, UDOT has the statutory authority to decide, at least initially, its own jurisdiction; it undoubtedly has the jurisdiction to determine whether it possesses jurisdiction.

At ¶¶ 12-13.

Standard of Review

The Court discusses the standard of review in light of Murray v. Labor Commission ,

2013 UT 38 (June 28, 2013), and determines:

[W]e conclude that the PSC’s decision to uphold UDOT’s public classification both “is fact-like” and is “not law-like” and is thus subject to a deferential standard of review. See In re Adoption of Baby B., 2012 UT 35, ¶ 42. “The particular facts and circumstances” surrounding a crossing’s public character, “are likely to be so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out,” particularly when changes in that character may have taken place over many years. Id. ¶ 43 (internal quotation marks omitted). Moreover, because much of the detail about the crossing’s history was contained in witness memories and recollections of past dealings, PSC was in a better position to resolve this issue than we are now. See id. (stating that a question is “fact-like” if resolution of it “would often be affected by [a trail judge’s] observation of a competing ‘witness’s appearance and demeanor’ on matters ‘that cannot be adequately reflected in the record available to appellate courts’” (citation omitted)). In these ways, PSC’s determination in this case is much like a determination of negligence in a personal injury suit arising out of an automobile accident—a determination that we identified in In re Adoption of Baby B. as typically warranting deferential review. See id.

Conversely, the question in this case is unlike questions that typically receive non-deferential review, such as questions about what qualifies as a reasonable search or seizure. See id. ¶ 44. It does not lend itself “to consistent resolution by uniform precedent” and will not create a “consistent rule” upon which “the general public ought to be able to rely.” Id.

We must accordingly review PSC’s decision with a healthy dose of deference, paying heed to the reasons we afford it such deference.

At ¶¶ 19-21.

Substantial Evidence?

Whether the Commission’s decision upholding UDOT’s public classification can stand turns on the evidence that was before it and the evidence that it would have needed to reverse UDOT’s determination. As the party challenging UDOT’s public classification before the Commission, Union Pacific bore the burden of persuading the Commission that UDOT’s factual determination that the 400 North crossing is public was “not supported by substantial evidence.” Utah Chapter of the Sierra Club v. Bd. of Oil, Gas, & Mining, 2012 UT 73, ¶ 31, 289 P.3d 558 (internal quotation marks omitted). It could have met that burden by showing either (1) that the 400 North crossing was abandoned/vacated and no longer public; or (2) that 400 North, as it stands today, is a new road that never became a public right of way. It did neither. Thus, we uphold the Commission’s determination that UDOT’s public classification is supported by substantial evidence.

At ¶ 22.

The Commission would have had to overturn UDOT’s public classification if Union Pacific had shown that the public abandoned its right to use the crossing. Under Utah law, however, once a road becomes public, it remains public until it is formally abandoned or vacated. UTAH CODE § 72-5-105(1) (“All public highways, streets, or roads once established shall continue to be highways, streets, or roads until formally abandoned or vacated . . . .”). By statute, any such vacatur or abandonment must occur “by written order, resolution, or ordinance resolution of a high-way authority having jurisdiction or by court decree.” Id. This statute “make[s] no allowance for” anything but formal abandonment. State v. Harvey Real Estate, 2002 UT 107, ¶ 17, 57 P.3d 1088. 

Having stipulated that the 400 North crossing was or be-came public in 1942, Union Pacific had the burden of presenting evidence of formal abandonment or vacatur after that date. It failed to carry that burden.

At ¶¶ 23-24.

Thus, Union Pacific’s only viable means of attacking UDOT’s public classification is to show that the 400 North crossing, as it stands today, is not the same crossing that has been public since at least 1942. Union Pacific pressed this in its rehearing request to the Commission and advances it again before this court today. Specifically, Union Pacific argues that the crossing as it stands “became private when the road that crosses Union Pacific’s right of way near 400 North Street was relocated off of the public right of way in the 1970’s.” We hold, however, that Union Pacific failed to produce enough evidence to support that theory below. Specifically, we find that significant evidentiary gaps exist regarding (1) whether and how much the road moved since 1942, and (2) what caused the crossing to move and which of the interested entities—if any—were involved in reconfiguring the crossing after it became public.

At ¶ 25.

Union Pacific had to do more than simply show that the crossing moved. “[T]he public cannot ac-quire a right by use to pass over a tract of land generally, but only in a certain . . . way,” Lindsay Land & Livestock Co. v. Churnos, 285 P. 646, 649 (Utah 1929), but Utah law has long allowed changes to a right of way as long as those changes do not diminish its useful-ness, frustrate its purposes, or burden the dominant or servient estate,5 see Hubble v. Cache Cnty. Drainage Dist. No. 3, 259 P.2d 893, 896 (Utah 1953) (“[I]t is clear that the needs of society and the concomitant policy of the law favor changes and improvements for the benefit of the dominant estate so long as the manifest intent of the parties does not disallow the changes and the burden to the servient tenement is not increased.”). Thus, a public right of way may be changed or moved as long as its “practical identity” is preserved. See Lindsay Land & Livestock Co., 285 P. at 649 (noting that, for establishment of a public right of way, “slight deviations from the common way to avoid encroachments, obstacles, or obstructions upon the road” are not enough to interrupt the public‟s use as long as the “practical identity of the road [is] preserved”).

At ¶ 27.

Further, we have held that when the public acquires by use a right of way over private land, it also acquires the right to make “necessary improvements and repairs . . . so as to keep it in a suit-able condition.” Jeremy v. Bertagnole, 116 P.2d 420, 423 (Utah 1941) (internal quotation marks omitted); Blonquist v. Blonquist, 516 P.2d 343, 344 (Utah 1973) (stating that a public right of way acquired by use includes not only the “beaten path” but also “that which was reasonably safe and convenient for the use to which the road was put”). Moreover, by statute, the scope of a public right of way “is that which is reasonable and necessary to ensure safe travel ac-cording to the facts and circumstances.” UTAH CODE § 72-5-104(8); see Conatser v. Johnson, 2008 UT 48, ¶ 21, 194 P.3d 897 (“[A]n easement holder has the right to make incidental uses beyond the ex-press easement and does not exceed the easement’s scope if those uses are made in a reasonable manner and they do not cause un-necessary injury to the servient owners.” (internal quotation marks omitted)). The Commission heard evidence that the crossing may have been reconfigured in the early 1970s for safety reasons. If this reconfiguration actually occurred and consisted only of changes that were necessary for safe travel, the changes would not affect the right of way’s public status.

At  ¶ 28.

In sum, Union Pacific failed to present enough and the right type of evidence to support its arguments before the Com-mission. Because Union Pacific did not come forward with evidence showing that the 400 North crossing was formally vacated or abandoned, its only hope was to show that the 400 North crossing was a new crossing that never became public. Evidentiary mysteries about how much the road moved and why and who moved it, however, were grounds for the Commission to rule against Union Pacific on that question.

At ¶ 31.

Jex V. Labor Commission, 2013 UT 41, No. 20120347 (July 9, 2013)

ISSUES: Worker’s Compensation. Going & Coming Rule, Instrumentality Exception, Benefit of the Doubt Exception?

Justice Lee,

The Court reviews the facts of the case and establishes that whether certain facts satisfy the requirements of the instrumentality exception to the going and coming rule for worker’s compensation benefits is a “fact-like” mixed question of law and fact entitled to deference.

At ¶¶ 1-16.

At the core of this case is a judicially adopted principle known as the “going and coming” rule. See, e.g., Higgins v. Indus. Comm’n, 700 P.2d 704, 707 (Utah 1985); Covey-Ballard Motor Co. v. Indus. Comm’n, 227 P. 1028, 1028 (Utah 1924). According to this rule, “accidents occurring to the employee while going to and from work” are generally not compensable because they are outside the course of employment. Bailey v. Indus. Comm’n, 398 P.2d 545, 546 (Utah 1965). Our cases have also recognized exceptions to this general rule—limited circumstances in which an accident in the course of “going and coming” is nonetheless within the course of employment. See, e.g., Tax Comm’n v. Indus. Comm’n, 685 P.2d 1051, 1053–54 (Utah 1984) (cataloguing various exceptions to the going and coming rule).

The question before us is whether Jex qualifies for such an exception. The exception he has sought to invoke is the so-called “instrumentality” exception—an exception holding that even in going and coming a vehicle may be in the course of employment if it is an instrumentality of the employer‘s business in light of the employer‘s benefit from and control over it. See Bailey, 398 P.2d at 546–47. Jex seeks to invoke this exception, citing the benefits conferred on Precision‘s business by the use of his vehicle. Because he used his pickup truck to give rides to Precision employees, to carry tools to the jobsite for use, and to run occasional errands, in other words, Jex contends that his vehicle became an all-purpose “instrumentality” of Precision‘s business, and thus that he was in the course of employment even in going and coming from work.

We disagree. Under a proper understanding of the instrumentality exception and its elements, which we clarify below, Jex‘s vehicle was not an instrumentality of Precision‘s business. Instead, we conclude that Jex fell squarely within the going and coming rule and thus that his accident was outside his “course of employment.” In affirming the court of appeals on that basis, we also reject a fallback argument advanced by Jex—that he is entitled to the benefit of “any doubt” about the availability of workers‘ compensation benefits, and thus should prevail in light of a range of unresolved factual and legal questions implicated in this case.

At ¶¶ 18-20.

[T]hough our analysis is couched in terms of the subsidiary rules (“going and coming”) and exceptions (“instrumentality”) from our caselaw, the ultimate question is the statutory one—whether Jex‘s accident was in the “course of employment.” That is the lodestar. The contours and scope of the rules and exceptions announced in our cases must be driven by the statutory standard. Not vice-versa.

That predicate informs our resolution of this case. Jex‘s claim is premised on an expansive conception of the instrumentality exception that finds some support in the dicta in our cases, but is ultimately irreconcilable with the statutory lodestar. Specifically, Jex asserts that a vehicle used for “going and coming” purposes falls within the “instrumentality” exception whenever its use confers any benefit on the employer—even absent any control or direction on the part of the employer.

We reject that conception of the instrumentality exception. We acknowledge dicta in our precedent that is susceptible to Jex‘s construction. But we conclude that the “any benefit” conception runs counter to the tenor of the exception as articulated in our caselaw. And, more fundamentally, we find that approach incompatible with the statutory standard, in that a “going and coming” commute that is only incidentally beneficial to the employer and not subject to its control does not bring the commute within the “course of employment.”

At ¶¶ 22-24.

In the Court's original case establishing the instrumentality exception to the going and coming rule, Bailey v. Industrial Commission, 398 P.2d 545 (Utah 1965),

[t]he basis for our determination that the proprietor‘s car had become “an instrumentality” of the business hinged on employer control (via duty) and benefits conferred (via the substantial service performed). See id. Thus, in Bailey we deter-mined that an employee is in “the course of [her] employment” if she is injured while subject to her employer‘s control and while benefiting the employer. See id.; see also BLACK‘S LAW DICTIONARY 405 (9th ed. 2009) (defining “course of employment” as “[e]vents that occur or circumstances that exist as part of one‘s employment, [especially] the time during which an employee furthers an employer‘s goals through employer-mandated directives”).

In the years since Bailey, we have continued to cite these two factors—employer control and benefits conferred—not only in applying the instrumentality exception,4 but also as ―the major focus in determining whether or not the general [going and coming] rule should apply in a given case, Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 934, 937 (Utah 1989).

At ¶¶ 26-27.

The Court differentiates this case from Salt Lake City Corp. v. Labor Commission, 2007 UT 4, 153 P.3d 179, stating,

Jex overreads our opinion in Salt Lake City Corp. That opinion should not be construed to jettison the “control” factor or to distill the entire instrumentality inquiry down to the notion of “benefit.” Our focus on benefit, rather, was in articulating a “utilitarian” standard for assessing “the degree of employer involvement in the activity in which the employee was engaged when the injury occurred”—a standard (of involvement) tied to the statutory criterion of injury in the “course of employment.” Salt Lake City Corp., 2007 UT 4, ¶ 20. And, although we emphasized benefit and seemed to minimize control, we did so in circumstances where only the former was in question, and where we assumed that the two elements would necessarily go hand-in-hand. Thus, the notion of “benefit” as the sole “measure” of the instrumentality exception cannot be extended beyond the facts and circumstances of Salt Lake City Corp., where the employer‘s control was evident—and indeed the vehicle in question was owned by the employer—and the only question was the extent of the benefit on the party exercising control.

At ¶¶ 28-31.

The court distinguishes Black v. McDonald’s of Layton, 733 P.2d 154, 156 (Utah 1987).

At ¶ 32

We therefore read Salt Lake City Corp. and Black as continuing rather than repudiating the two-fold standard in Bailey. Mere incidental benefit is not sufficient, standing alone, to sustain invocation of the instrumentality exception. An employer‘s control must also be evaluated.

At ¶ 33.

[B]oth factors—control and benefit—are relevant to the instrumentality inquiry. Their evaluation, moreover, is on a sliding scale. If an employer imposes a clear-cut requirement that an employee bring and use her car at work, for example, then we can probably presume that the employer is benefited, or deem any incidental benefit enough to bring the use of the vehicle within the course of employment. A loose request, on the other hand, might require a stronger showing of benefit to bring the use of the vehicle within the course of employment.

Under that standard and in all cases, the ultimate question is whether the use of a vehicle in “going and coming” is nonetheless within the “scope of employment.” And that question must be answered by considering and balancing both the benefit to the employer and the nature and extent of the employer‘s control.

At ¶¶ 37-38.

We affirm the decision of the court of appeals under these principles. Because Jex has failed to show the degree of control or benefit necessary to bring him within “the course of employment” at the time of his injury, we conclude that the court of appeals was right to affirm the denial of his workers‘ compensation claim.

At ¶ 39.

The Court reviews the facts, as found by the ALJ, and determines that

Weighing the factors of control by and benefit to the employer, we conclude that the court of appeals properly deferred to the commission‘s determination that Jex‘s truck was not an all-purpose instrumentality of Precision‘s business. Based on the ALJ‘s findings, which we accept as true, and on the commission‘s application of the law to those findings, which was entitled to deference, the court of appeals was right to conclude that Jex‘s pickup truck was not an instrumentality of Precision‘s business, and thus that he was acting outside the course of employment at the time of his injury.

At ¶¶ 40-51.

Benefit of the doubt?

In addition to asserting the merits of his position on the instrumentality exception, Jex also advances a fallback position. Citing dicta in a few of our cases, Jex insists that even if his position ultimately fails under the law as applied to the facts of his case, he should nonetheless prevail on his claim for benefits because there are “doubts” about the nature and application of the instrumentality exception—and because as an employee he is entitled to the benefit of “any doubt” on the matter. See Salt Lake City Corp., 2007 UT 4, ¶ 16 (explaining that “we . . . look closely to assure our-selves that the Commission . . . has resolved any doubt respecting the right to compensation in favor of an injured employee”).

This argument misperceives the dicta in our cases. Our hyperbole notwithstanding, it cannot literally be true that we resolve “any doubt” about the right to workers‘ compensation in favor of coverage. The judicial process is premised on doubt. In workers‘ compensation cases as in others, the supposed precondition for litigation is uncertainty—regarding unresolved legal questions, unknown results of factual discovery, or unpredictable decisions by imperfect decisionmakers under inherently subjective legal standards.

And of course there is uncertainty on all such points in a case like this one, which is why we judges (and lawyers) who are a part of it have jobs. That cannot be enough to generate a benefit-of-the doubt presumption in favor of coverage. If it were, workers‘ compensation litigation would be overwhelmingly lopsided, and the law would never evolve or be clarified because doubts would generate compensation awards instead of precedents.

Thus, the benefit-of-the doubt presumption in our cases must necessarily stand for something more modest. We now clarify that it does, while refining the dicta in our prior cases.

The benefit of the doubt owing to workers‘ compensation claimants comes at the back end of the litigation—after the judge (or commission) makes a run at resolving disputed questions of fact, at clarifying gray areas of law, and at applying the law to the facts of the case at hand. In the rare case where that process yields genuine doubt—in a dead heat without an apparent winner—that doubt should be resolved in favor of coverage. But otherwise the judge (or commission) is oath-bound to rule in favor of the party whose case is strongest under the law as applied to the facts. Such a judgment cannot be abandoned on the mere presence of doubt about the matter.

At ¶¶ 52-56.

Carbon County v. WFSV, 2013 UT 41, No. 20120251 (July 9, 2013)

ISSUE: Unemployment Benefits, Sufficiency of Evidence 

Justice Nehring,

This case concerns the award of unemployment benefits to an emergency medical technician (EMT) formerly employed by Carbon County. Carbon County appealed the decision of the Workforce Board of Appeals (Board) to the Utah Court of Appeals. The court of appeals affirmed. It explained that the Board failed to make certain critical factual findings, and that facts in the record, even if uncontested, could not form the bases for legal arguments on appeal absent such findings. We hold that the court of appeals erred in declining to consider certain uncontested facts in its legal analysis, but affirm the court’s ultimate determination upholding the award of unemployment benefits.

At ¶ 1.

The Court reviews the facts surrounding the employees termination as an EMT for Carbon County, the award of unemployment benefits and the Court of Appeals decision affirming the award of benefits.

At ¶¶ 2-5.

We granted certiorari to determine whether the court of appeals erred when it concluded that Carbon County’s arguments were predicated on challenges to findings of fact and that Carbon County had failed to preserve those challenges.

At ¶ 5.

The Court, applying the new precedent of Murray v. Labor Commission , 2013 UT 38 (June 28, 2013), determines that this is a “fact-like” mixed question of law and fact that is entitled to deferential review.

At ¶¶ 6-7.

This case requires us to determine whether the court of appeals used the correct set of facts in making its legal determinations. For the reasons explained below, we conclude that the court of appeals correctly accepted the findings of fact in the ALJ decision and the Board’s order because Carbon County expressly stated that it was not challenging these facts on appeal. But the court erred when it declined to consider certain undisputed facts apparent in the record. When we consider the Board’s decision in light of these undisputed facts, however, we determine that the error was harmless. We therefore affirm the court of appeals on that ground.

At ¶ 8.

The Court reviews the factual background of the case. Specifically, which facts were in dispute and which facts were not, and determines

the court of appeals did not err when it concluded that some of Carbon County’s arguments were predicated on challenges to findings of fact that Carbon County explicitly abandoned. But the court did err when it refused to factor into its legal conclusions the undisputed evidence in the record that Mr. Marinoni knew the patient was having a heart attack.

At ¶ 13.

Factoring in the uncontested testimony that Mr. Marinoni knew the patient was having a heart attack—a fact the Board likely took into account without explicitly noting—we affirm the court of appeals’ ultimate conclusion that the Board’s decision should be upheld. Under Utah Administrative Code rule R994-405-201, “[b]enefits will be denied if the claimant was discharged for just cause or for an act or omission in connection with employment . . . which was deliberate, willful, or wanton and adverse to the employer’s rightful interest.” The rule continues by explaining that “not every legitimate cause for discharge justifies a denial of benefits. A just cause discharge must include some fault on the part of the claimant.” As the Board further stressed, Carbon County “may have made a good business decision in discharging [Mr. Marinoni],” but the legitimacy of the discharge does not necessarily justify the denial of benefits.

At ¶ 14.

Utah Administrative Code rule R994-405-202 requires that an employer prove three elements: Culpability, knowledge, and control.

At ¶ 15.

The Board ruled that Carbon County failed to establish any of the three elements, although the ALJ determined that Carbon County failed to establish only the first two elements: culpability and knowledge. We hold that the Board’s conclusions regarding the first element, culpability, are entitled to deference.

At ¶ 16.

The Court reviews the findings concerning the employee’s culpability for the error and finds that they are reasonable.  Accordingly, the Court defers to the Board and affirms their decision that Carbon County failed to prove just cause for termination.

At ¶¶ 17-23.