Travelers Property Casualty Company of America et al v. Federal Recovery Services et al
MEMORANDUM DECISION and ORDER granting in part and denying in part 49 Plaintiffs' Motion for Summary Judgment. Signed by Judge Ted Stewart on 1/12/2016. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA, a Connecticut
corporation, and TRAVELERS
CASUALTY INSURANCE COMPANY
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
FEDERAL RECOVERY SERVICES, INC.,
a Utah corporation, and FEDERAL
RECOVERY ACCEPTANCE, INC., a Utah
corporation doing business as
Case No. 2:14-CV-170 TS
District Judge Ted Stewart
This matter is before the Court on Plaintiffs Travelers Property Casualty Company of
America and Travelers Casualty Insurance Company of America’s (collectively, “Travelers”)
Motion for Summary Judgment. Travelers request the Court dismiss Federal Recovery Services,
Inc. (“FRS”) and Federal Recovery Acceptance, Inc.’s (“FRA”) dba Paramount Acceptance
(“Paramount”) (collectively, “Defendants”) counterclaims for (1) breach of contract, (2) breach
of the implied covenant of good faith and fair dealing, and (3) breach of fiduciary duty. The
Court will grant in part and deny in part Travelers’ Motion for the reasons discussed below.
Defendants are in the business of providing processing, storage, transmission, and other
handling of electronic data for its customers. Travelers issued a CyberFirst Technology Errors
and Omissions Liability Form Policy (the “CyberFirst Policy”) to Defendants and Defendants are
the named insureds under the policy.
Global Fitness Holdings, LLC (“Global Fitness”) owns and operates fitness centers in
several states. As part of its operations, Global Fitness had numerous members who contracted
with Global Fitness for access to its fitness centers. Members provided either credit card or bank
account information to Global Fitness for billing purposes (“Member Accounts Data”).
Global Fitness entered into a Servicing Retail Installment Agreement with FRA that
required FRA to process the Member Accounts and transfer the members’ fees to Global Fitness.
Global Fitness alleged that FRA retained possession of Member Accounts Data and interfered
with its business dealings, thereby causing Global Fitness irreparable harm and loss. On October
10, 2012, Global Fitness filed suit against Defendants claiming tortious interference, promissory
estoppel, conversion, breach of contract, and breach of the implied covenant of good faith and
fair dealing. Global Fitness sought attorney fees and punitive damages.
On December 17, 2012, FRA informed Travelers of its lawsuit with Global Fitness via
email to its insurance broker, Mike Rice. 1 Mr. Rice responded that he had spoken with
Travelers on the phone regarding the matter. 2 In his deposition, Mr. Rice testified that Travelers
represented that there was a possibility that the Global Fitness lawsuit may be covered under the
breach of contract clause, but advised Mr. Rice to wait to file a claim until formal papers had
been served. 3 Mr. Rice did not file a claim with Travelers until May 22, 2013. 4 Travelers
Docket No. 60 Ex. A.
Docket No. 60 Ex. B, at 68.
responded in writing on June 28, 2013, with its first denial of the claim, stating that the Global
Fitness lawsuit fell outside of coverage under the CyberFirst Policy. 5
FRA requested reconsideration of the denial on July 26, 2013, and again on August 27,
2013. 6 On September 6, 2013, Travelers granted FRA’s request for reconsideration and asked
that FRA provide formal legal authority in support of its opposition to the denial. 7 FRA
submitted its memorandum with legal authority to Travelers on November 13, 2013. 8 On
December 11, 2013, Travelers again denied the claim having considered the legal authority
provided by FRA. 9
On March 7, 2014, Travelers filed the instant action for declaratory relief against
Defendants seeking determination of its duty to defend under the CyberFirst Policy. On April
10, 2014, Defendants again tendered defense of the Global Fitness action to Travelers. 10
Travelers accepted the tender of defense on April 23, 2014, but with a full and complete
reservation of rights, including the right to seek a judicial declaration as to its rights and
obligations under the policy. 11
On November 13, 2014, Defendants filed a motion for partial summary judgment seeking
the Court’s determination as to whether Travelers owed a duty to defend Defendants under the
Docket No. 60 Ex. D.
Docket No. 60 Ex. E.
Docket No. 60 Ex. F; Docket No. 60 Ex. G.
Docket No. 60 Ex. H.
Docket No. 60 Ex. I.
Docket No. 60 Ex. J.
Docket No. 60 Ex L.
Docket No. 60 Ex. M.
CyberFirst Policy. The Court issued its ruling on May 11, 2015, denying Defendants’ motion.
The Court found that Travelers did not owe Defendants a duty to defend under the CyberFirst
Policy. 12 Travelers now submits this Motion for Summary Judgment requesting the Court
dismiss Defendants’ counterclaims against it.
II. LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” 13 In
considering whether a genuine dispute of material fact exists, the Court determines whether a
reasonable jury could return a verdict for the nonmoving party in the face of all the evidence
presented. 14 The Court is required to construe all facts and reasonable inferences in the light
most favorable to the nonmoving party. 15
Travelers moves for summary judgment and request this Court dismiss Defendants’
counterclaims for (1) breach of contract, (2) breach of the implied covenant of good faith and fair
dealing, and (3) breach of fiduciary duty. Each will be discussed in turn below.
1. Breach of Contract
“The elements of a prima facie case for breach of contract are (1) a contract, (2)
performance by the party seeking recovery, (3) breach of the contract by the other party, and (4)
Docket No. 45.
Fed. R. Civ. P. 56(a).
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924
F.2d 182, 183 (10th Cir. 1991).
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
damages.” 16 Travelers argues that Defendants’ breach of contract claim fails as a matter of law
because this Court ruled in its May 11, 2015 Order that Travelers does not owe Defendants a
duty to defend under the CyberFirst Policy.
In its Response, Defendants argue that Travelers incorrectly interprets the Court’s May
11, 2015 Order. Defendants argue that the “the narrow issue before the Court in that motion was
whether viewing only the ‘eight corners’ of the complaint and policy triggered the duty to
defend.” 17 Defendants assert that the Court’s Order “did not pertain to, and this Court has not
yet had an opportunity to consider, the extrinsic evidence which is relevant to a determination as
to whether Travelers owes a duty to defend.” 18 Defendants essentially seek to relitigate the issue
of whether Travelers owes them a duty to defend.
In its May 11, 2015 Order, the Court stated that “[a]s a general rule, ‘an insurer’s duty to
defend is determined by comparing the language of the insurance policy with the allegations in
the complaint.” 19 “‘If the language found within the collective ‘eight corners’ of these
documents clearly and unambiguously indicates that a duty to defend does or does not exist, the
analysis is complete.’” 20 The Court determined that a comparison of the language of the policy
and the allegations in the complaint made clear that the Global Fitness action was not covered
under the CyberFirst Policy.
Bair v. Axiom Design, L.L.C., 20 P.3d 388, 392 (Utah 2001).
Docket No. 57, at ii.
Id. at 1.
Docket No. 45, at 7 (quoting Fire Ins. Exch. v. Estate of Therkelsen, 27 P.3d 555, 560
Id. (quoting Equine Assisted Growth & Learning Ass’n v. Carolina Cas. Ins. Co., 266
P.3d 733, 737 (Utah 2011)).
The policy states that coverage is provided if the loss is caused by an “errors and
omissions wrongful act.” 21 “Errors and omissions wrongful act” is defined as “any error,
omission or negligent act.” 22 Global Fitness’s Complaint and Amended Complaint against
Defendants alleged that Defendants knowingly withheld information and refused to turn it over
until Global Fitness met certain demands. Thus, while the policy provides coverage for errors,
omissions, and negligent acts, Global Fitness’ claims against Defendants allege knowledge,
willfulness, and malice. Accordingly, the Court determined that the policy did not extend
coverage to the Global Fitness suit.
Having lost its earlier motion, Defendants cannot seek to relitigate the same issue. It is
improper for Defendants to now argue that extrinsic evidence must be used in determining the
duty to defend when they failed to do so previously and failed to respond to Travelers’ argument
that extrinsic evidence should not be considered. As Travelers correctly indicates, Defendants
did not dispute that extrinsic evidence is inadmissible and Defendants did not offer such
evidence nor suggest that such evidence should be considered. 23 Defendants’ argument
misrepresents its prior briefing and the Court’s ruling and is a disingenuous and transparent
attempt to reargue an issue that this Court already decided.
Generally, once a court decides an issue, the same issue may not be relitigated in
subsequent proceedings in the same case. Unlike res judicata, the law of the case
doctrine is not an inexorable command, but is to be applied with good sense.
Accordingly, the doctrine is subject to three exceptions: (1) when the evidence in
a subsequent trial is substantially different; (2) when controlling authority has
Docket No. 28, Ex. B, CyberFirst Technology Errors and Omissions Liability
Coverage Form, Section I, 2, at Bates number PRMT000923.
Id., CyberFirst Technology Errors and Omissions Liability Coverage Form, Section II,
3, at Bates number PRMT000926.
Docket No. 65, at vii.
subsequently made a contrary decision of the law applicable to such issues; or (3)
when the decision was clearly erroneous and would work a manifest injustice . . . .
[T]hese exceptions [are read] narrowly, requiring district courts to apply the law
of the case unless one of the exceptions specifically and unquestionably applies. 24
Here, none of the above exceptions specifically and unquestionably apply.
Under Utah law, consideration of extrinsic evidence to determine the scope of an
insurer’s duty to defend is generally prohibited, but may be considered if the parties
contractually make the duty to defend dependent on whether there is actually a covered claim or
suit. 25 In Fire Insurance Exchange v. Estate of Therkelsen, the Utah Supreme Court explained
that the duty to defend “‘arises solely under contract.’” 26 “If the parties make the duty to defend
dependent on the allegations against the insured, extrinsic evidence is irrelevant to a
determination of whether a duty to defend exists. However, if, for example, the parties make the
duty to defend dependent on whether there is actually a ‘covered claim or suit,’ extrinsic
evidence would be relevant to a determination of whether a duty to defend exists.”27
The Therkelsen court provided examples to illustrate when the policy language
contractually makes the duty to defend dependent on the allegations within a complaint and
when the policy language indicates that consideration of extrinsic evidence is necessary in
determining whether a claim is actually covered. In the first example, when a standard
homeowner’s policy provides that the insurer will “provide a defense at [the insurer’s] expense
Wessel v. City of Albuquerque, 463 F.3d 1138, 1143 (10th Cir. 2006) (citations,
alternations, and internal quotations omitted).
See Estate of Therkelsen, 27 P.3d at 560–61.
Id. at 560 (quoting Ins. Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212,
1214–25 (6th Cir. 1980)).
Id. at 561.
by counsel of [the insurer’s] choice, even if the suit is groundless, false or fraudulent,” the duty
to defend is dependent upon the allegations within the complaint against the insured. 28 In the
second example, when an insurance policy describes the duty to defend as “we will defend an
insured against any covered claim or suit,” the court explained that consideration of extrinsic
evidence is necessary to determine whether the claim or suit was actually “covered” by the
Courts apply this test by first examining the policy language to determine whether it is
necessary to proceed beyond an “eight corners” analysis. In Employers Mutual Casualty
Company v. Bartile Roofs, Inc., 30 the relevant policy provision assumed the duty to defend
against any “suit” seeking “damages because of . . . property damage.” 31 The term “suit,”
referred to civil proceedings in which a party “‘allege[s]’ the existence of damages within the
coverage of the applicable . . . policy.” 32 The Tenth Circuit reasoned that the definition of the
term “suit” indicated that the duty to defend depends on the “‘allegati[on][of] liability within the
coverage afforded by the policy’ rather than on a determination that the suit is actually covered
by the policy” 33 and did not consider extrinsic evidence.
In Mid-America Pipeline Co., LLC v. Mountain States Mutual Casualty, 34 the relevant
policy provision provided that the insurer “will pay those sums that the insured becomes legally
Id. (alteration in original).
Id. (quoting Fire Ins. Exch. v. Rosenberg, 930 P.2d 1202, 1203 (Utah Ct. App. 1997)).
618 F.3d 1153 (10th Cir. 2013).
Id. at 1172.
Id. (quoting Estate of Therkelsen, 27 P.3d at 561).
No. 2:05-CV-153, 2006 WL 1278748 (D. Utah May 8, 2006).
obligated to pay as damages because of . . . ‘property damage’ to which this insurance applies.” 35
The district court reasoned that the scope of the contractual duty to defend is determined “with
reference to what a suit seeks; [and therefore, the insurance company] must defend a suit that
alleges liability within the policy’s coverage.” 36
Here, the relevant provision of the CyberFirst Policy states,
We will have the right and duty to defend the insured against any claim or “suit”
seeking damages for loss to which the insurance provided under one or more of
“your cyber liability coverage forms” applies . . . . However, we will have no duty
to defend the insured against any claim or “suit” seeking damages for loss to
which the insurance provided under “your cyber liability coverage forms” does
not apply. 37
The term “suit” is defined as,
A civil proceeding that seeks damages or injunctive relief. Suit includes:
An arbitration proceeding that seeks such damages or injunctive relief and
to which the insured must submit or submits with our consent; and
Any other alternative dispute resolution proceeding that seeks such
damages or injunctive relief and to which the insured submits with our
In the same way that courts have interpreted substantially similar duty-to-defend clauses
and rejected the use of extrinsic evidence, this Court also rejects the use of extrinsic evidence in
determining the duty to defend. The duty to defend here is conditioned on “any claim or ‘suit’
seeking damages for loss to which the insurance provided . . . applies.” As in the cases
referenced above, the policy language indicates that the duty to defend is determined with
Id. at *2.
Docket No. 28, Ex. B, CyberFirst General Provisions Form, Section I, 1, at bates
Id., CyberFirst General Provisions Form, Section VII, 20, at Bates number
reference to what a claim or suit seeks. Therefore, Travelers must defend a suit that alleges
liability within the CyberFirst Policy. Thus, consideration of extrinsic evidence is irrelevant in
determining Travelers’ duty to defend.
Defendants rely on Equine Assisted Growth and Learning Association v. Carolina
Casualty Insurance Company 39 to support their argument that the Court should consider extrinsic
evidence. In Equine, the insurance company denied the insured coverage under an insuredversus-insured exclusionary clause. A former employee of the insured sued the insured’s board
of trustees under the insured’s name as President and CEO, so that it appeared as if the insured
filed suit against itself. The former employee had no authority to sue on the insured’s behalf.
The Utah Supreme Court began its analysis by comparing the relevant policy provisions with the
complaint to determine whether the contract conditions the duty to defend solely in reference to
the complaint. “Finding that this comparison neither eliminates nor establishes a duty to defend,
[the court] conclude[d] that the relevant contractual provision ties the duty to defend to facts not
contained in the complaint.” 40 As a result, the court found it necessary to consider extrinsic
evidence to determine whether the claim was actually brought “by, on behalf of, or in the right of
[the insured]” to invoke the exclusionary clause. 41
Such an ambiguity does not exist here. A comparison of the policy language and the
allegations in the complaint eliminates a duty to defend, which makes extrinsic evidence
irrelevant. Here, the complaint alleges that Defendants knowingly withheld information and
refused to turn it over until Global Fitness met certain demands. Thus, the complaint alleges
Id. at 733.
Id. at 736.
Id. at 738.
knowledge, willfulness, and malice while the CyberFirst Policy covers only errors, omissions,
and negligent acts. As the Utah Supreme Court said in Equine, “an insurer would have no duty
to defend an insured based on a complaint sounding solely in battery when the policy excludes
intentional torts from coverage. Under these circumstances, the duty-to-defend analysis . . .
focus[es] on two documents: the insurance policy and the complaint . . . and extrinsic evidence
plays no part in the analysis.” 42 The same is true here.
Accordingly, the Court maintains its May 11, 2015 Order finding that Travelers does not
owe a duty to defend Defendants under the CyberFirst Policy. Without a duty to defend,
Defendants cannot prevail on its breach of contract counterclaim. Thus, the Court will grant
summary judgment on this issue and dismiss Defendants’ counterclaim for breach of contract.
2. Breach of the Implied Covenant of Good Faith and Fair Dealing
Travelers argues that a claim for breach of the implied covenant of good faith and fair
dealing fails where the insurer’s denial of coverage was proper and the insurer did not breach the
contract. However, “[i]n Utah, a plaintiff may sue on a contract for: (1) breach of the contract’s
express terms; and/or (2) breach of the covenant of good faith and fair dealing, which is an
implied duty that inheres in every contractual relationship.” 43 Under the covenant, “the
contracting parties each impliedly promise not to intentionally or purposely do anything that will
destroy or injure the other party’s right to receive the fruits of the contract, and to comply with
Id. at 736 (citation and internal quotation omitted).
Blakely v. USAA Cas. Ins. Co., 633 F.3d 944, 947 (10th Cir. 2011).
the covenant, a party must act consistently with the agreed common purpose and the justified
expectations of the other party.” 44
The Utah Supreme Court has held that “‘when an insured’s claim is fairly debatable, the
insurer is entitled to debate it and cannot be held to have breached the implied covenant of good
faith if it chooses to do so.’” 45 “Therefore, an insurer cannot be held to have breached the
covenant of good faith and fair dealing on the ground that it wrongfully denied coverage if the
insured’s claim, although later found to be proper, was fairly debatable at the time it was
Under this framework, the Court will deny summary judgment on this claim. Defendants
allege that Travelers breached the implied covenant of good faith and fair dealing by (1)
improperly and untimely denying coverage; (2) “failing to diligently investigate, fairly evaluate,
and promptly and reasonably communicate with FRA since the claim was initially tendered in
December 2012;” 47 (3) inappropriately requiring FRA to first receive suit papers before initiating
a claim, and (4) threatening to have defense costs reimbursed. 48
To the extent Defendants’ bad faith arguments root in Travelers’ denial of coverage, such
arguments will not be considered because an insurer cannot be held to have breached the
covenant of good faith and fair dealing if the claim was fairly debatable at the time it was
Prince v. Bear River Mut. Ins. Co., 56 P.3d 524, 533 (Utah 2002) (citations, alterations,
and internal quotations omitted).
Jones v. Farmers Ins. Exch., 286 P.3d 301, 304 (Utah 2012) (quoting Billings ex rel.
Billings v. Union Bankers Ins. Co., 918 P.2d 461, 465 (Utah 1996)).
Id. (citation and internal quotation omitted).
Docket No. 57, at 6.
Id. at 7.
denied. 49 Indeed, this Court has determined that Travelers does not owe a duty to defend
Defendants under the CyberFirst Policy and that denial of coverage was proper in this case.
Additionally, Defendants’ argument that Travelers’ threat to obtain reimbursement of
defense costs evidences bad faith also fails because it is unsupported by law and by the record.
Defendants cite to U.S. Fidelity v. U.S. Sports Specialty 50 for the proposition that an insurer may
only claim a right to reimbursement for a claim if the express terms of the insurance contract
create an enforceable right to reimbursement. 51 However, whether Travelers has a right to
reimbursement of defense costs is an issue separate from the implied covenant of good faith and
However, to the extent Defendants argue that Travelers (1) inappropriately required
Defendants to first receive suit papers before initiating a claim and (2) failed to “diligently
investigate, fairly evaluate, and promptly and reasonably communicate with FRA since the claim
was initially tendered in December 2012” 52— factual issues preclude summary judgment.
Defendants provide expert testimony stating that Travelers’ conduct did not measure up
to the standard required for insurance claim investigations. 53 The CyberFirst General Provisions
SECTION V – CYBER LIABILTY CONDITIONS
2. Duties In the Event of a Claim or Suit
a. if a claim or “suit” is made or brought against any insured, you must:
(1) Immediately record the specifics of the claim or “suit” and the date received; and
Billings, 918 P.2d at 465.
270 P.3d 464 (Utah 2012).
Docket No. 57, at 8.
Id. at 6.
Docket No. 57 Ex. C.
(2) Notify us in writing of the claim or “suit” as soon as practicable, but in no event after
the policy period or the Basic Extended Reporting Period, or the Supplemental Extended
Reporting Period if such reporting period is provided. 54
Defendants’ expert witness, Paul Brenkman, argues that it was inappropriate to require
FRA to first receive suit papers before initiating a claim under the policy language. Mr.
Brenkman asserts that the policy provisions differentiate between a claim and a suit, and
therefore, “a ‘suit’ is not a necessary condition before there is a duty to defend.” 55 Mr.
Brenkman contends that requiring the filing of a lawsuit as a condition precedent to accepting
Defendants’ claim report is contrary to industry customs, practices and standards. 56
Defendants argue that by inappropriately requiring the filing of suit papers before
initiating its investigation into Defendants’ claim, Travelers’ denial of its claim in June 2013 was
dilatory and resulted in severe financial consequences to Defendants. In his report, Mr.
Brenkman asserts, “Travelers’ claim handling processes, or the lack thereof, left [Defendants] to
fend for [themselves] during critical time periods with severe financial consequences to
Under the implied covenant of good faith and fair dealing, “a party must act consistently
with the agreed common purpose and the justified expectations of the other party.” 58 At the very
least, the covenant contemplates that the insurer “will diligently investigate the facts to enable it
to determine whether a claim is valid, will fairly evaluate the claim, and will thereafter act
Docket No. 28, Ex. B, CyberFirst Technology Errors and Omissions Liability
Coverage Form, Section V, 2, at Bates number PRMT000916.
Docket No. 57 Ex. C, at 9.
Docket 57, at 15.
Id. at 21.
Prince, 56 P.3d at 533 (citations and internal quotations omitted).
promptly and reasonably in rejecting or settling the claim.” 59 Here, the narrow issue of whether
Travelers inappropriately required the filing of suit papers in contravention of the CyberFirst
Policy provisions, which may have resulted in a dilatory denial of defense causing severe
financial consequences to the Defendants, is a factual issue and may be submitted to the jury.
Under Utah law, “‘[w]hether there has been a breach of good faith and fair dealing is a
factual issue, generally inappropriate for decision as a matter of law.’” 60 “Summary judgment is
appropriate only when reasonable minds could not differ in concluding that the party accused of
breaching the covenant did not wrongfully exercise its discretionary power or contractual
authority for a reason beyond the risks that the other party assumed or for a reason inconsistent
with the other party’s justified expectations.” 61 Accordingly, the Court denies Travelers’ motion
for summary judgment on this issue. Any further proceedings, including trial, are limited to the
narrow issue of whether Travelers’ initial handling of Defendants’ claim measured up to the
required standard of care.
3. Breach of Fiduciary Duty
“In a third-party situation, the insurer controls the disposition of claims against its
insured, who relinquishes any right to negotiate on his own behalf.” 62 “Wholly apart from the
contractual obligations undertaken by the parties, the law imposes upon all agents a fiduciary
Beck v. Farmers Ins. Exch., 701 P.2d 795, 801 (Utah 1985).
Oman v. Davis Sch. Dist., 194 P.3d 956, 968 (Utah 2008) (quoting Republic Grp., Inc.
v. Won-Door Corp., 883 P.2d 285, 291 (Utah Ct. App. 1994)).
Id. at 968–69.
Beck, 701 P.2d at 799.
obligation to their principals with respect to matters falling within the scope of their agency.” 63
“To prove a breach of fiduciary duty claim, a plaintiff must demonstrate that the defendant owed
a duty, the defendant breached the duty, the plaintiff suffered damages, and the plaintiff’s
damages were actually and proximately caused by the defendant’s breach.” 64 In this case, the
Court has determined that Travelers does not owe a duty to defend Defendants under the
CyberFirst Policy. Without a duty to defend, Defendants cannot show that Travelers breached its
fiduciary duty to defend. Accordingly, the Court will grant summary judgment on this issue and
dismiss Defendant’s counterclaim for breach of fiduciary duty.
It is therefore
ORDERED that Plaintiffs’ Motion for Summary Judgment (Docket No. 49) is
GRANTED IN PART AND DENIED IN PART.
DATED this 12th day of January, 2016.
BY THE COURT:
United States District Judge
Id. at 799–800.
Giles v. Mineral Res. Int’l, Inc., 338 P.3d 825, 827 (Utah Ct. App. 2014).
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