Scott v. Wingate Wilderness Therapy

Filing 38

MEMORANDUM DECISION AND ORDER granting 8 Motion to Dismiss with Prejudice. Signed by Judge David Nuffer on 3/14/19 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

JACOB M. SCOTT, an individual
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING [8] DEFENDANT’S
MOTION TO DISMISS WITH
PREJUDICE

vs.
WINGATE WILDERNESS THERAPY, LLC,
a Utah Limited Liability Company,

Case No. 4:18-CV-0002-DN
District Judge David Nuffer

Defendant.
Defendant Wingate Wilderness Therapy, LLC (“Wingate”) filed a Motion to Dismiss 1
Plaintiff Jacob M. Scott’s (“Scott”) complaint in its entirety because Wingate is a health care
provider; the injury in this case relates to or arose out of health care rendered or which should
have been rendered; Scott failed to comply with the pre-litigation requirements of the Utah
Health Care Malpractice Act (“UHCMA”); and Scott failed to commence this action within the
UHCMA’s two-year statute of limitations. 2 Based on Wingate’s Motion to Dismiss and the
responsive filings 3, Wingate’s Motion to Dismiss will be granted, with prejudice.
Furthermore, after considering briefing from the parties on the issues of certification to
the Utah Supreme Court, 4 certification is unnecessary. Although broad, the language of the

1

Wingate Wilderness Therapy’s Motion to Dismiss and Memorandum in Support Thereof, docket no. 8, filed April
24, 2018.
2

Utah Code § 78B-3-401 et seq.

3

Plaintiff Jacob M. Scott’s Opposition to Defendant Wingate Wilderness Therapy, LLC’s Motion to Dismiss
(“Opposition”), docket no. 13, filed May 21, 2018; Wingate Wilderness Therapy’s Reply Memorandum in Support
of Motion to Dismiss Plaintiff’s Complaint (“Reply”), docket no. 19, filed June 8, 2018.
4

See Docket Text Order Taking Under Advisement Defendant’s Motion to Dismiss, docket no. 12, filed May 15,
2018.

relevant statutes is clear, and the case does not present an issue of law which would require
clarification from the Utah Supreme Court.
BACKGROUND
Wingate, located in Southern Utah, operates an outdoor youth program to provide
behavioral, substance abuse, and mental health services to troubled adolescents. 5 Wingate is a
wilderness based therapy program. 6 While in the wilderness, residents are treated by licensed
therapists, psychologists and various other professionals. 7 Camping, hiking, climbing, and
exploring the wilderness are part of a resident’s recovery and treatment. 8
On or about February 21, 2015, Scott enrolled in Wingate’s therapy program. 9 Plaintiff
sought treatment for substance abuse, disruptive behavior, anxiety, and parent-child
relationships. 10 On or about March 6, 2015, Scott sustained an injury to his knee. 11 Afterwards,
Scott was transported to the hospital. 12 Scott initiated the instant case by filing a Complaint on
March 2, 2018. 13
STANDARD OF REVIEW—MOTION TO DISMISS
In order to withstand a motion to dismiss under Bell Atlantic Corp. v. Twombly, 14 and
Ashcroft v. Iqbal 15 a plaintiff must allege enough facts, “taken as true, to state a claim to relief

5

Motion to Dismiss at 2.

6

Id.

7

Id. at 3.

8

Id.

9

Complaint at ¶10.

10

Motion at 3.

11

Complaint at ¶11.

12

Complaint at ¶ 52.

13

Complaint at 12.

14

550 U.S. 544 (2007).

15

556 U.S. 662 (2009).

2

that is plausible on its face.” 16 A plaintiff must “offer specific factual allegations to support each
claim” 17 and while the Court must “accept as true all of the allegations contained in a complaint”
this requirement is “inapplicable to legal conclusions.” 18 The determination of plausibility will
be a “context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” 19 Therefore, “in ruling on a motion to dismiss, a court should disregard all
conclusory statements of law and consider whether the remaining specific factual allegations, if
assumed to be true, plausibly suggest the defendant is liable.” 20
In a motion to dismiss based on lack of subject-matter jurisdiction brought under Fed. R.
Civ. P. 12(b)(1) “the moving party may (1) facially attack the complaint’s allegations as to the
existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint
by presenting evidence to challenge the factual basis upon which subject matter jurisdiction
rests.” 21 “A court has wide discretion to allow affidavits, other documents, and a limited
evidentiary hearing to resolve disputed jurisdictional facts.” 22 However, “[w]hen, as in this case,
a court resolves a motion to dismiss for lack of subject matter jurisdiction without an evidentiary
hearing, the plaintiff is only required to make a prima facie showing of subject matter
jurisdiction.” 23 “All factual disputes are resolved in favor of the plaintiff[] when determining the

16

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011)(internal quotation marks
omitted)(quoting Twombly, 550 U.S. at 570).
17

Kansas Penn, 656 F.3d at 1214.

18

Kansas Penn, 656 F.3d at 1214 (internal quotation marks omitted)(quoting Iqbal, 556 U.S. at 677).

19

Kansas Penn, 656 F.3d at 1214 (internal quotation marks omitted)(quoting Iqbal, 556 U.S. at 679).

20

Kansas Penn, 656 F.3d at 1214.

21

Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003).

22

Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221 (10th Cir. 2001) (citing Holt v. United States, 46 F.3d 1000
(10th Cir. 1995)).
23
Pringle v. United States, 44 F. Supp. 2d 1168, 1171 (D. Kan. 1999)(citing Fed. Deposit Ins. Corp. v. Oaklawn
Apartments, 959 F.2d 170, 174 (10th Cir. 1992)).

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sufficiency of this showing.” 24
DISCUSSION
Plaintiff Scott alleged one cause of action against Wingate for negligence and reckless
conduct. 25 Scott alleged that Wingate breached its duty of care to him and was negligent and/or
reckless by, among other things, “(i) allowing the youth to take a detour from the designated
route; (ii) allowing the lead staff member to leave the group with only one staff member
remaining with the group; (iii) not doing anything to determine whether the climbing of the rock
formation would be safe for the youth; (iv) not properly assessing the danger of allowing the
youth to climb the rock formation; (v) allowing the youth to climb the dangerous rock formation
without supervision; (vi) allow the youth to climb the dangerous rock formation without any
safety gear; (vii) not assisting Jacob with his descent down the rock formation and (viii)
instructing Scott to climb down the rock formation when and where it was dangerous to do so.” 26
Scott also alleged that Wingate failed to properly train or supervise its employees. 27
Wingate’s Motion asserts two grounds for dismissal, (1) Scott failed to comply with the
mandatory pre-litigation provisions of the UHCMA and (2) Scott failed to file his Complaint
prior to the expiration of UHCMA’s applicable two-year statute of limitation. In order for the
UHCMA to be applicable, Wingate must be considered a health care provider under the
UHCMA definition 28 and the alleged injury must relate to or arise out of health care rendered or
which should have been rendered. 29

24

Rusakiewicz v. Lowe, 556 F.3d 1095, 1100 (10th Cir. 2009).

25

See Complaint at ¶¶ 10 et seq.

26

Id. at ¶¶ 67, 75.

27

Id. at ¶ 69.

28

Utah Code Ann. § 78B-3-403(12).

29

Utah Code Ann. § 78B-3-403(17).

4

“The definition of ‘health care provider’ found in the UHCMA is a broad one.” 30 The
UHCMA defines health care providers as:
“Health care provider” includes any person, partnership,
association, corporation, or other facility or institution who causes
to be rendered or who renders health care or professional services
as a hospital, health care facility, physician, registered nurse,
licensed practical nurse, nurse-midwife, licensed direct-entry
midwife, dentist, dental hygienist, optometrist, clinical laboratory
technologist, pharmacist, physical therapist, physical therapist
assistant, podiatric physician, psychologist, chiropractic physician,
naturopathic physician, osteopathic physician, osteopathic
physician and surgeon, audiologist, speech-language pathologist,
clinical social worker, certified social worker, social service
worker, marriage and family counselor, practitioner of obstetrics,
licensed athletic trainer, or others rendering similar care and
services relating to or arising out of the health needs of persons or
groups of persons and officer, employees, or agents of any of the
above acting in the course and scope of their employment. 31
In interpreting this statute, the Utah Supreme Court held: “We conclude that the statute in
question means what it says. All those identified in the statute are ‘health care providers.’ All
others rendering care and services similar to those so explicitly identified are also ‘health care
providers.’” 32 Whether an entity is a health care provider is a factual determination made by
comparing the actual services rendered by the entity to services rendered by a health care
provider listed in the UHCMA. 33
As the Complaint establishes, Wingate does business as a licensed as a “Youth
Program” 34 under Utah Code to provide “behavioral, substance abuse, [and] mental health

30

Tools v. Red Rock Canyon Sch., 2005 WL 1501435 (D. Utah 2005).

31

Utah Code Ann. § 78B-3-403(12).

32

Platts v. Parents Helping Parents, 947 P.2d 658, 663 (Utah 1997).

33

See id.

34

Complaint at ¶ 10.

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services.” 35 Scott acknowledges that at the time of the incident, Wingate was “attempting to
provide behavioral or mental health services” to him. 36
The governing Utah administrative rules require Wingate, as a youth program, to have a
“multi-disciplinary team, accessible to consumers” including various physical and mental health
professionals. 37 This rule then requires Wingate to provide mental health services. Wingate
employs—and Scott does not dispute that Wingate does—several licensed medical and mental
health professionals, including clinical social workers, certified social workers, mental health
counselors and a psychologist. 38 These health care professionals make up the clinical team
responsible for providing therapeutic treatment for all of Wingate’s participants 39 and Scott
concedes that he met with a licensed marriage and family therapist during his time at Wingate. 40
In light of this information, 41 it can readily be determined that the services Wingate
provides “relat[e] to or aris[e] out of the health needs of persons or groups of persons[,]” 42
because it provides behavioral or mental health services. Furthermore, based on the health care
professionals that Wingate employs, Wingate provides services that similar to those provided by

35

Utah Code Ann § 62A-2-101(40)(a).

36

Complaint at ¶ 11.

37

Utah Admin. Code R501-8-6(8)

38

Motion at 9.

39

Id.

40

Opposition at 11.

41

It should be noted that Wingate’s original proposed memorandum decision and order contained a number of
additional facts that Plaintiff controverted because those facts were first raised in Wingate’s Reply. See Notice of
Filing of (Proposed) Memorandum Decision and Order Granting Defendant’s Motion to Dismiss with Prejudice at
5–7, docket no. 29, filed July 27, 2018; Motion for Limited Discovery at 2, docket no. 28, filed July 27, 2018.
However, as the analysis makes clear, the factual determination that Wingate is a health care provider can be made
based the allegations in Plaintiff’s Complaint, applicable Utah statutory and administrative rule language, and the
additional, undisputed evidence offered in Wingate’s original Motion to Dismiss and Plaintiff’s Opposition. Any
fact that was first raised in Wingate’s reply was deleted from the proposed order and not included in this final
memorandum decision and order.
42

Utah Code Ann. § 78B-3-403(12).

6

a psychologist, clinical social worker, certified social worker, and a marriage and family
counselor under U.C.A. § 78b-3-403(12). Wingate therefore qualifies as a health care provider
under the broad language of the UHCMA.
The Complaint makes it clear that Scott’s injury relates to or arises out of health care
rendered or which should have been rendered. Scott states in the Complaint that, at the time of
the injury and “for some time before[,]” Wingate was “attempting to provided behavioral or
mental health services.” 43 The provisions of the UHCMA—including its pre-litigation
requirements and statute of limitations—apply here.
The UHCMA provides that an action “may not be initiated unless and until the plaintiff”
complies with the requirements of the UHCMA. 44 Under the UHCMA, prior to commencing an
action against a health care provider such as Wingate, Scott was required to “(1) giv[e] notice to
the health care provider ninety days before commencement of the actions, (2) participat[e] in a
pre-litigation panel review, and (3) fil[e] the complaint within the abbreviated two-year statute of
limitations period.” 45
Scott failed to provide Wingate with “at least 90 days prior notice of intent to commence
an action” and he failed to request a pre-litigation panel review hearing with the Division of
Occupational and Professional Licensing “within 60 days after the service of a statutory notice of
intent to commence action.” 46 The UHCMA also provides that “a malpractice action against a
health care provider shall be commenced within two years after the plaintiff or patient discovers,
or through the use of reasonable diligence should have discovered the injury, whichever first

43

Complaint at ¶ 11.

44

Utah Code Ann. § 78B-3-412(1).

45

Carter v. Milford Valley Mem’l Hosp., 996 P.2d 1076, 1079 (Utah Ct. App. 2000).

46

Utah Code Ann. § 78B-3-412, Utah Code Ann. § 78B-3-416.

7

occurs.” 47 When the plaintiff is a minor at the time of their injuries, the statute of limitations is
tolled until they reach the majority age. 48 The age of majority in Utah is 18 years old. 49
Here, Scott sustained the injury to his leg three months before his 18th birthday. He was
injured on March 6, 2015 50 and treated at a hospital the same day. 51 Scott knew he was injured
on March 6, 2015. 52 Scott turned 18 years old on June 12, 2015. The statute of limitations
expired on June 12, 2017, two years after Scott’s 18th birthday.
Scott had until June 12, 2017, to comply with the provisions of the UHCMA in
commencing an action against Wingate. Scott did not file this action until March 2, 2018, 263
days after the statute of limitations had expired.
In summary:
Date of injury:
Date of Plaintiff’s 18th birthday:
2-year statute of limitations expired:
Date instant Complaint was filed:

March 6, 2015
June 12, 2015
June 12, 2017
March 2, 2018

Based upon the expiration of the applicable statute of limitations, this case must be dismissed
with prejudice.
Tolling the statute of limitation for equitable reasons is inappropriate in this case. Scott
has not shown that Wingate did anything to prevent him from investigating and filing suit prior
to the expiration of the statute of limitations. Scott knew he was injured on March 6, 2015, when
he sustained the injury to his leg and was treated at a hospital. Scott was discharged from the

47

Utah Code Ann. § 78B-3-404.

48

Utah Code Ann. § 78B-2-108.

49

Utah Code Ann. § 15-2-1.

50

Complaint at ¶ 9.

51

Reply at 13.

52

Complaint at ¶ 9.

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hospital and returned home on March 8, 2015. 53 Scott’s parents were informed of his injury on
March 6, 2015. His parents knew more detail about his injury on March 8, 2015, when he
returned to their home. They knew he was under Wingate’s care when he was injured.
Scott has failed to make a showing “that the plaintiff did not know of and could not
reasonably have known of the existence of the cause of action in time to file a claim within the
limitation period.” 54 He knew he was injured on March 6, 2015. The two-year statute of
limitations began to run on June 12, 2015, Plaintiff’s 18th birthday. There are no exceptional
circumstances that exist in this case to allow tolling the statute of limitations beyond the twoyear limit.
In summary, Wingate provides services similar to health care providers listed in the
UHCMA and the UHCMA specifically extends the definition of “health care provider” to
entities that provide these comparable services. Wingate therefore is a health care provider under
the UHCMA. The injury Scott alleges relates to or arose out of health care rendered or which
should have been rendered by Wingate. The terms of the UHCMA are applicable to this matter.
Here, Scott failed to adhere to the UHCMA’s pre-litigation notice and panel review
requirements, and failed to file his Complaint prior to the expiration of the UHCMA’s two-year
statute of limitations. The Complaint must be dismissed with prejudice.
ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that Wingate’s Motion to
Dismiss 55 is GRANTED. Scott’s claims against Wingate are DISMISSED WITH PREJUDICE.

53

Reply at 13.

54

Warren v. Provo City Corp., 838 P.2d 1125, 1129 (Utah 1992).

55

Wingate Wilderness Therapy’s Motion to Dismiss and Memorandum in Support Thereof, docket no. 8, filed April
24, 2018.

9

The Clerk is directed to close the case.
Signed March 14, 2019.
BY THE COURT:

David Nuffer
United States District Court Judge

10