OTTENS v. McNEIL

Decision Date26 August 2010
Docket NumberNo. 20090231-CA.,20090231-CA.
Citation2010 UT App 237,239 P.3d 308
PartiesJennifer OTTENS, Plaintiff and Appellant, v. Dan McNEIL and Nickolas Coleman, Defendant and Appellee.
CourtUtah Court of Appeals

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Loren M. Lambert, Midvale, for Appellant.

Richard K. Glauser and Michael W. Wright, Sandy, for Appellee.

Before Judges DAVIS, McHUGH, and VOROS.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 Plaintiff Jennifer Ottens appeals from various procedural and evidentiary rulings and from the trial court's entry of a directed verdict in favor of Defendant Dan McNeil (Dan). We reverse and remand in part, and affirm in part.

BACKGROUND 1

¶ 2 Ottens's lawsuit stems from injuries she sustained in a March 29, 2002 automobile accident. The accident occurred on Interstate Highway 15 (I-15) when Ottens's car was rear-ended after she stopped suddenly to avoid hitting a kitchen chair owned by Dan. The chair was part of the contents of a pickup truck used to move property from Dan's former home in Bluffdale (the Bluffdale home) to his new residence in the Fort Union area (the Fort Union home).

The Move

¶ 3 At the time of the accident, Dan and his former wife were co-owners of D & K Finish Carpentry (D & K). Although Dan had relocated when he and his wife divorced in 1998, they continued to operate D & K from the Bluffdale home. D & K's office furniture and equipment, as well as some of Dan's personal belongings, including the chair and the kitchen set to which it belonged, were located at the Bluffdale home. [B]ecause of the divorce,” and as part of “the last deal” between Dan and his former wife, they were selling the Bluffdale home, which required Dan to remove all of the property.

¶ 4 Assisting Dan with the move were his son, Jacob McNeil (Jake), Dan's daughter, and some unidentified D & K employees. At his deposition, 2 Dan testified that he may have given Jake some money for gas to help with the move, but later clarified that Dan was reimbursed by D & K. Although Dan was not certain at his deposition as to whether Jake was on the D & K payroll during the move, he testified at trial that Jake and the other laborers were working for D & K and were “on the clock” during the move. Jake testified at his deposition that he was paid for his time helping with the move in the form of a check from D & K payroll, but in response to a question from Ottens's counsel, Jake did not include that date among the time periods in his life during which he “estimate[d] that he was “probably” working for D & K.

¶ 5 On moving day, Dan was “in and out” of the house, “directing the move,” helping to box things up, telling people which items needed to be moved out, and [t]aking stuff back and forth to the trucks.” Neither Jake nor Dan could recall who actually loaded the kitchen chairs, or if the chairs were loaded into Jake's blue-green 1996 Ford pickup truck (the green truck) or the other truck being used to transport Dan's belongings. 3 When the trucks were “full,” Dan and Jake secured the load by “throwing ropes back and forth,” weaving the ropes in and out of the furniture, and “hooking [the ropes] in the eye hooks” on the trucks.

The Accident

¶ 6 Dan and Jake each drove one of the pickup trucks from the Bluffdale home to theFort Union home, with Dan leaving between fifteen and thirty minutes after Jake. Neither Jake nor Dan saw anything falling from his vehicle in transit, but Dan acknowledges that one of his chairs “fell from the truck owned and driven by Jake McNeil.”

¶ 7 Ottens testified that she was traveling northbound in the center lane of I-15 when a “green truck” that was traveling in the right-hand lane “moved over into [the center] lane.” “A second or two” later, the “chair blew out of the back” of the truck and landed in the center lane. Ottens “immediately hit [her] brake” to avoid the chair, and after she came to a full stop, another car struck her from behind, injuring Ottens in the process.

¶ 8 Dan testified that as he was driving to the Fort Union home, he “recognized one of [his] black chairs on the side of the road” and called Jake, who confirmed that a chair was missing. Although Dan could not recall what he did next, he acknowledged that the accident report contained handwriting that appeared to be his. He also acknowledged that those portions of the report identified Dan as the driver and D & K as the “Registered Owner,” and listed Dan's age, date of birth, years of driving experience, and telephone number. Another part of the report, which was in handwriting unfamiliar to Dan, listed the address of the Bluffdale home as the driver's address. Dan had no memory of writing the report and did not believe he had done so. Dan testified that he “definitely did not fill out that [he] was the driver of the vehicle” and that he first learned he was listed as the driver a few days after the accident when he received a copy of the report.

¶ 9 Jake testified that after he arrived at the Fort Union home, Dan used his cell phone to call and request that Jake “count how many chairs were in the kitchen set.” According to Jake, Dan had been contacted because “one of his chairs was [believed to be] involved with an accident.” In his earlier deposition testimony, Jake related that Dan thought “one of the chairs fell out on the freeway so [Dan was] going to go back and talk to the police officers.” In connection with the accident, Dan was issued a traffic citation, which he paid without challenge.

Procedural History

¶ 10 Within two months of the accident, Ottens retained legal counsel. Thereafter, Ottens negotiated settlements with some of the other parties involved, but did not file a complaint against Dan until June 22, 2005, over three years after the accident and nine months before the expiration of the statute of limitations, see Utah Code Ann. § 78B-2-307 (2009) (“An action may be brought within four years: ... (3) for relief not otherwise provided for by law.”). 4 Relying on the information in the accident report and the traffic citation, Ottens alleged that the chair fell out of a truck driven by Dan and that Dan's “failure to properly secure his load ... seriously injured” Ottens and damaged her vehicle.

¶ 11 Shortly thereafter, Ottens attempted to serve Dan with the summons and complaint at the Bluffdale home, which was the address listed on the accident report. Because Dan had moved, the attempt was unsuccessful. Ottens then obtained two alternate addresses for Dan from the Utah Department of Public Safety but was unable to locate him at either location. 5 Ottens next inquired whether Dan's insurance provider would accept service on Dan's behalf. After some indecision, the attorney provided by the insurance company, who subsequently represented Dan, accepted service of the summons and complaint for Dan on March 13, 2006. 6¶ 12 Dan filed his answer on March 27, 2006-two days before the statute of limitations on Ottens's claims expired and before the answer was due. 7 Dan denied that he was the driver, stating that Jake “may have been operating the [green truck] at the time of the accident and ... may have been responsible for loading the vehicle.” Dan further “reserve[d] the right to amend [his answer] should he discover that a person other than ... Jake ... was operating the [green] truck.”

¶ 13 Based on Dan's statement, Ottens decided to take Dan's and Jake's depositions, and to conduct other discovery designed to identify the driver of the green truck. Ottens made no attempt to amend the complaint at that time to modify the allegations, claims, or parties before the statute of limitations expired. On August 10, 2006, over four months after Dan filed his answer, Ottens took Jake's and Dan's depositions, 8 during which they each testified that Jake drove the green truck. Jake also indicated that the day of the move was a normal work day and that he was compensated for the hours he spent transporting the property with his regular company paycheck. Although Dan's memory had faded between the time of the accident and his deposition taken over four years later, he indicated that he would trust Jake's recollection of how Jake was paid.

¶ 14 In response to that information, on September 5, 2006, Ottens filed a motion to amend her complaint, seeking to add Jake as a party. 9 She also sought leave to modify the factual allegations to contend that Jake was driving the green truck, that Dan personally hired Jake to help with the move, and that both Dan and Jake “fail[ed] to properly secure the load.” Ottens argued that the amended complaint related back to the original complaint and that the equitable discovery rule served to toll the statute of limitations. Dan opposed the motions, arguing that neither theory was applicable. Dan's opposition memorandum, filed on September 20, 2006, states, Defendant disputes that he paid or employed Jake McNeil to assist him in transporting the property. He acknowledges that Jake testified that he was paid for the move, testimony that he disputes. But, Jake testified that he was paid by D & K Finish Carpentry, Inc., and not Mr. McNeil, personally. (Emphasis added.)

¶ 15 The trial court denied Ottens's motion to add Jake as a defendant, concluding that doing so would be “legally futile” because the motion was barred by the four-year statute of limitations. The trial court further held that the proposed amendment did “not relate back to the time of the filing of the original complaint because there is no identity of legal interest between Jake ... and ... Dan,” and that Ottens knew of Jake's involvement before the limitations period expired but waited another six months to file the motion to amend the complaint. 10 However, the trial court did permit Ottens to amend her complaint to allege that Dan had hired Jake to help with the move, that both Dan and Jake participated...

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