Kilpatrick v. Bullough Abatement, Inc.

• Citation: 2008 UT 82,199 P.3d 957
• Decision Date: 12 December 2008
• Docket Number: No. 20060887.,No. 20070156.,20060887.,20070156.
• Parties: Margaret KILPATRICK, individually, and as personal representative on behalf of the legal heirs of James Kilpatrick, Deceased, Plaintiff and Appellant, v. BULLOUGH ABATEMENT, INC., et al., Defendants and Appellees. Marvin Kirkham and Carolyn Kirkham, Plaintiffs and Appellants, v. Garlock Sealing Technologies, LLC, et al., Defendants and Appellees.
• Court: Supreme Court of Utah

199 P.3d 957

2008 UT 82

Margaret KILPATRICK, individually, and as personal representative on behalf of the legal heirs of James Kilpatrick, Deceased, Plaintiff and Appellant, v. BULLOUGH ABATEMENT, INC., et al., Defendants and Appellees.

Marvin Kirkham and Carolyn Kirkham, Plaintiffs and Appellants, v. Garlock Sealing Technologies, LLC, et al., Defendants and Appellees.

No. 20060887.

No. 20070156.

Supreme Court of Utah.

December 12, 2008.

Attorneys:¹ Robert G. Gilchrist, S. Brook Millard, Bronson D. Bills, Alan R. Brayton, Courtney G. Broaden, Salt Lake City, for appellants.

Michael F. Skolnick, Shawn McGarry, David Bernstein, Salt Lake City, for appellee. Bullough Abatement, Inc.

Joseph J. Joyce, Salt Lake City, for appellee Garlock Sealing Technologies, LLC.

PARRISH, Justice:

INTRODUCTION

¶ 1 These cases are two of several asbestos-related cases governed by a Case Management Order (the "CMO") that was adopted in 2001 and applies routinely to all asbestos-related litigation brought by the firms involved in drafting the CMO. One of the "Additional Discovery" obligations imposed by the CMO was an autopsy following the death of any plaintiff. Margaret Kilpatrick and Carolyn Kirkham (collectively, the "plaintiffs") both failed to procure an autopsy before their husbands were respectively cremated and buried. As a sanction for the violation of the CMO, the district court dismissed both cases. Plaintiffs appealed, arguing that their violations of the CMO were neither willful nor in bad faith. The two cases were consolidated on appeal. We hold that the district court's dismissal lacked an evidentiary basis to establish fault and we therefore reverse.

FACTS

I. CASE MANAGEMENT ORDER

¶ 2 The facts are not in dispute. In 2001, anticipating a substantial increase in asbestos litigation, the Third District Court created a "Master Case File" for asbestos litigation, In re Asbestos Litigation, Third District No. 010900863-AS. In an effort to efficiently manage these cases, the district court directed counsel for the plaintiffs and the defendants to develop a case management order that would be applicable to all asbestos cases. In May 2001, the district court adopted the first version of the CMO, which was intended to facilitate the administration of asbestos cases by reducing multiple filings and hearings, minimizing discovery disputes, and setting out a standard for the orderly disposition of cases.

¶ 3 One of the discovery provisions in the CMO required an autopsy upon the death of a plaintiff (the "autopsy requirement"). Section III-5 of the CMO provides:

Notice of Death and Autopsy: Plaintiff's attorney, upon learning of the death of Plaintiff shall immediately notify counsel for Defendants of Plaintiff's death.

a. Plaintiff's spouse or another of plaintiff's representatives shall produce the body of the deceased for one full and complete autopsy, including the thoracic and abdominal cavities, to be performed by the state medical examiner or a competent pathologist designated by plaintiff's counsel unless otherwise ordered by the Court upon good cause shown.

b. A showing of "good cause" may include religious beliefs and family preferences regarding autopsies, although these factors are not necessarily determinative of the issue.

c. Appropriate and adequate quantities of tissue shall be obtained and preserved for inspection and review by pathologists selected by the parties and all tissue samples selected and preserved at the autopsy shall be made available to all parties for appropriate medical and pathological testing. [CMO 1, 10]

The CMO was amended twice, most recently in September 2003; however, the autopsy requirement remained unaltered.

¶ 4 The CMO was the product of negotiation among all interested parties. As one of the primary law firms for asbestos-related litigation in Utah, Brayton Purcell participated in developing the CMO. For this reason, the CMO applies to all asbestos related cases filed by Brayton Purcell in Salt Lake County. Margaret Kilpatrick and Carolyn Kirkham are two of several plaintiffs represented by Brayton Purcell in asbestos-related law suits.

II. KILPATRICK

¶ 5 James Kilpatrick and his wife Margaret filed a complaint in February 2001 for personal injury and loss of consortium due to Mr. Kilpatrick's alleged exposure to asbestos. During the course of litigation, Mr. Kilpatrick signed an authorization for his counsel to procure a full and complete autopsy upon his death. Mrs. Kilpatrick neither signed nor knew of the authorization. On July 5, 2003, Mr. Kilpatrick passed away and was cremated before an autopsy was performed. Following Mr. Kilpatrick's death, Mrs. Kilpatrick substituted herself as the named plaintiff and amended the complaint to include claims for survival and wrongful death. In 2005, Defendant Burlington Northern & Santa Fe Railway Company ("BNSF") filed a motion to dismiss the amended complaint for failure to comply with the CMO by providing Mr. Kilpatrick's body for an autopsy.

¶ 6 The court dismissed Mrs. Kilpatrick's suit in 2006 in two separate orders relating to two separate parties. First, in March, the court issued a memorandum decision concluding that Mrs. Kilpatrick's failure to obtain an autopsy was prejudicial to the defendants because it hindered their ability to defend against the claim that Mr. Kilpatrick suffered from an asbestos-related disease. Based on this memorandum decision, the court dismissed Defendant BNSF. In September, also relying on the memorandum decision, the court filed a minute entry granting Defendant Bullough Abatement, Inc.'s ("Bullough") motion to dismiss. Bullough was the last remaining defendant in Mrs. Kilpatrick's case. She filed a notice of appeal in September 2006.

III. KIRKHAM

¶ 7 Marvin Kirkham and his wife Carolyn, filed their complaint in December 2005, alleging injuries and loss of consortium due to Marvin's alleged exposure to asbestos. Mr. Kirkham was diagnosed with mesothelioma in October 2005. During the course of litigation, Mr. Kirkham's health declined precipitously, and he passed away on May 13, 2006. In January 2006, both Mr. and Mrs. Kirkham had signed an authorization for their counsel to procure an autopsy following Mr Kirkham's death. Mrs. Kirkham stated in her affidavit that she was so distraught following Mr. Kirkham's death that she forgot about the autopsy requirement and failed to notify her attorneys of Mr. Kirkham's death until after he was buried. As a result, no autopsy was performed. Following Mr. Kirkham's death, Mrs. Kirkham filed a motion to substitute herself as the named plaintiff. Defendant Hamilton Materials, Inc., joined by several other defendants, filed a motion to dismiss for failure to comply with the autopsy requirement. In a January 2007 minute entry, the court dismissed Mrs. Kirkham's claims as a sanction for her failure to procure an autopsy. Mrs. Kirkham filed her notice of appeal in February 2007.

¶ 8 These cases were consolidated for appeal. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j) (Supp.2008).

ANALYSIS

I. JURISDICTION OVER THE BNSF DISMISSAL IN THE KILPATRICK CASE

¶ 9 The first issue is whether we have jurisdiction over Mrs. Kilpatrick's appeal of the order dismissing her claims against BNSF. After the district court entered its memorandum decision and its order dismissing BNSF, Mrs. Kilpatrick moved to certify the BNSF dismissal under rule 54(b) of the Utah Rules of Civil Procedure. BNSF did not oppose the motion, and the district court certified the decision in June 2006. The district court's order stated in its entirety, "Plaintiff's unopposed motion to enter final judgment as to [BNSF] and to certify matter as ready for appeal is granted. Plaintiff's counsel is directed to prepare the appropriate order." (Emphasis removed.) Mrs. Kilpatrick's counsel never prepared the order.

¶ 10 Three months later, the district court dismissed Bullough, the final defendant in the Kilpatrick case. The court's minute order relied on the reasons set forth in the memorandum decision dismissing BNSF and designated the dismissal as a final order. The minute entry clarified that "[n]o further order [was] required." Mrs. Kilpatrick filed a notice of appeal five days later. Her notice of appeal indicated that she was appealing the "Order Granting Defendant's Motion to Dismiss which extinguished all claims against Bullough Abatement, Inc." Although the notice of appeal referenced the court's decision regarding BNSF, the notice did not explicitly state that Mrs. Kilpatrick intended to appeal the dismissal of BNSF.²

¶ 11 BNSF argues that we do not have jurisdiction over the appeal because it was untimely and because the notice did not indicate an intent to appeal the dismissal of BNSF. "`Whether appellate jurisdiction exists is a question of law which we review for correctness, giving no deference to the decision below.'"³

A. The Appeal Against BNSF Was Not Untimely Because the District Court's Minute Entry Granting Certification Was Never Entered as an Order in Compliance with Rule 7(f)

¶ 12 Rule 7(f)(2) of the Utah Rules of Civil Procedure states that "unless otherwise directed by the court, the prevailing party shall, within fifteen days after the court's decision, serve upon the other parties a proposed order in conformity with the court's decision." In Code v. Utah Department of Health, we clarified that the time for appeal begins to run with the entry of the prepared order, unless the court either approves a proposed order submitted with the initial memorandum or explicitly directs that no order is required.⁴ Thus, the minute entry or the memorandum decision alone does not trigger the time for appeal.⁵ If the prevailing party fails to enter an order within the fifteen-day period prescribed by rule 7(f)(2), the time for appeal does not begin to run. In such a case, "any party interested in finality ... may submit an order."⁶ Thus, if BNSF had...