OPINION OF THE COURT BY JUSTICE NOBLE.
Appellant/Cross-Appellee, Mary Beth Calor, filed this action against Appellees/Cross-Appellants, Ashland Hospital Corporation, d/b/a King's Daughters Medical Center and its CFO, Paul McDowell (collectively "KDMC"), in Boyd Circuit Court. The case went to a jury trial on claims of slander, intentional interference with a contract and punitive damages. The jury rendered a verdict in favor of Calor in the amount of $534,050. The Court of Appeals reversed, holding that KDMC was entitled to judgment as a matter of law on its claim of qualified privilege to the slander claim and the claim for intentional interference with a contract, and remanded to the circuit court. This Court granted discretionary review, and now reverses and remands to the Court of Appeals.
I. Background
Calor is an anesthesiologist who entered into a written Physician Services Agreement with a medical staffing agency, Staff Care, Inc. KDMC is a 440 bed medical hospital located in Ashland, Kentucky. Prior to contracting with Staff Care for locum tenens anesthesiologists, KDMC had contracted for these services with the chair of their anesthesiology department, who had an anesthesiology practice group that serviced the hospital. However, this group resigned, and KDMC determined that it needed to hire five or six anesthesiologists on staff. Until that was accomplished, KDMC had to rely on locum tenens anesthesiologists provided by Staff Care, including Calor. She began her services to KDMC in October 2001 and continued through June 2002 when KDMC released her over concerns about her billing records.
A locum tenens physician is one "who substitutes for another temporarily." Taber's Cyclopedic Medical Dictionary L-38 (10th ed. 1965); see also Black's Law Dictionary 959 (8th ed. 2004) (defining term as a "deputy; a substitute; a representative").
While Calor worked at KDMC, she and other anesthesiologists were recruited by KDMC to join its staff as members of a new anesthesiology group. She alleged this effort continued up until her release. Testimony indicated this recruitment effort was not revealed to Staff Care until after Calor's termination by KDMC.
Calor claimed an extraordinary amount of hours worked, which she recorded on forms that had to be signed off on by either the Chair or Vice-chair of KDMC's anesthesiology department. This was required by Staff Care, to ensure that it billed and paid its physicians appropriately. Staff Care's scheduling coordinator noticed the extremely large number of hours Calor billed, and called KDMC's Physician Recruiter in January 2002 to discuss her concerns. Staff Care paid the malpractice insurance premiums for its contract physicians, and the premium was directly related to the number of hours worked by the physicians.
Testimony at trial indicated that the cost to KDMC for the locum tenens physicians had significantly exceeded the amount budgeted for those services. As early as January 15, 2002, McDowell had already looked at some of Calor's billings, and questioned their reasonableness. In February, KDMC decided to withhold payments to Staff Care for Calor's services, but did not inform either of them at that time. By May, Staff Care had invoices for over $200,000 in billings that were past due, since KDMC withheld not only Calor's billings, but other physicians' as well. When Staff Care inquired about this, KDMC gave excuses, and even made statements about planning to pay that were not true. KDMC did not tell Staff Care and Calor that they were investigating her billing at that time. As the dispute continued, allegations that Calor refused to fill out appropriate forms and that her time could not be accounted for by hospital records arose. This culminated when McDowell set a meeting with Calor on June 21, 2002 to discuss her billing. However, he refused to proceed when Calor's husband, who kept her records, also came to the meeting. Instead, McDowell severed her assignment at that time.
McDowell then called a supervisor at Staff Care, who wrote in her daily work notes, "He explained they are releasing Dr. Mary Beth Calor as of today due to her falsifying timesheet in hours worked and overtime." Staff Care told McDowell that it was relying on the fact that KDMC doctors had signed off on the timesheets, and that it had been waiting for 120 days to hear from KDMC if there were any billing problems. McDowell informed her that they had been conducting an "investigation." That same day, he spoke with another supervisor at Staff Care and told the supervisor that he had information that showed Calor had falsified her billings. Over the next weeks, McDowell and the supervisor spoke often, and McDowell told him a dollar amount that he claimed Calor had overbilled. However, the investigation had not been able to show whether Calor had worked 670 hours she had claimed. The typical accusations and denials played out over that time.
KDMC did not pay Staff Care, who sued to recover on its contract but settled prior to trial. In turn, Staff Care did not pay Calor. Calor filed this action to recover her lost income, reputational damages, and punitive damages. She alleged, and offered proof at trial to show, that KDMC had not conducted a thorough investigation, that it made defamatory statements about her work, that its motives were to hire her on staff to cut locum tenens costs or to otherwise interfere with her contract with Staff Care, and that McDowell knew when he made these remarks that he could not prove them.
KDMC defended generally, but just before trial raised a qualified privilege defense based on a common business interest that it had not pleaded affirmatively even though it had previously been given leave of court to amend to raise other defenses. The trial court did not instruct on the qualified privilege, and the jury found for Calor on all three of her claims.
The Court of Appeals reversed, holding that KDMC was entitled to the qualified privilege as a matter of law and that the trial court should have granted summary judgment or a directed verdict in favor of the hospital on both the slander and intentional interference with a contract claims. The parties raised other issues — including whether the privilege issue should have been submitted to the jury, the statements in question were privileged because they were either true or opinion, the use of an alleged "golden rule" argument was improper, the punitive damages instruction was erroneous and the award was excessive and against the weight of the evidence — but the Court of Appeals did not reach them because it resolved the case by deciding only that the qualified privilege barred Calor's claims as a matter of law.
This Court granted discretionary review on Calor's motion. She claims that the Court of Appeals erred by holding that the qualified privilege barred her claim as a matter of law, arguing that the Court of Appeals applied the wrong standard of review; that KDMC's failure to raise the privilege as an affirmative defense was a fatal procedural default; that the privilege did not apply at all; that even if the privilege was applicable, the jury effectively found that KDMC abused (and thereby lost) it; and that the intentional interference with a contract claim was properly submitted to the jury. KDMC cross-appealed, disputing each of Calors claims and arguing four additional issues: that the statements were privileged as either truth or opinion; that Calor's counsel made an improper golden-rule argument at trial; that the trial court erred by not presenting the issues of abuse of the privilege to the jury; and that the punitive damages award was excessive and against the weight of the evidence.
II. Defamation and the Common Interest Qualified Privilege
Calor's defamation claim arose in the business context of her employment through Staff Care as a physician at KDMC through statements made by its agent to the effect that she had falsified her time records at the hospital. Because such statements tend to "impute crime" or "unfitness to perform duties of office," she correctly argued, and the trial court properly agreed, that she was entitled to prove her case as slander per se. See Courier Journal Co. v. Noble, 251 Ky. 527, 65 S.W.2d 703 (1933). As a per se action, her slander claim entitled her to a presumption of damages and she could "`recover without allegation or proof of special damages."' Stringer v. Wal-Mart Stores, Inc., 151 S.W. 3d 781, 794 (Ky. 2004) (quoting Hill v. Evans, 258 S.W.2d 917, 918 (Ky. 1953)). To defend against a slander perse action, KDMC was required to prove that the statements were true (truth is a complete defense even if stated with bad faith or ill will), mere opinion, or that it was entitled to application of a qualified privilege under the facts of the case.
As an alternative to the defenses of truth and opinion, KDMC claimed a qualified privilege stemming from a common business interest with Staff Care which required it to make the allegedly defamatory statements to Staff Care in promotion of that interest. Calor argues that the Court of Appeals erred by holding that KDMC was entitled to the defense as a matter of law. KDMC claims it was entitled to summary judgment as a matter of law.
Problematically, this claim was not made until the pretrial conference, and had not been raised as an affirmative defense in KDMC's answer or subsequent amended answer in which it raised other defenses.
A. Procedural Default of the Qualified Privilege
Calor argues that KDMC procedurally defaulted any claim to the qualified privilege because it is an affirmative defense and was not included in either its answer or amended answer as required by CR 8.03. The Kentucky Rules of Civil Procedure require that "a party shall set forth affirmatively . . . any other matter constituting an avoidance or affirmative defense." CR 8.03. Likewise, "[e]very defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto. . . ." CR 12.02. However, multiple exceptions to this requirement are provided by CR 15.01 and 15.02. Under CR 15.01 a party may amend his answer within twenty days of serving his original answer, by leave of court when justice so requires, or by written consent of the adverse party. Under CR 15.02, "[w]hen issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." That rule also allows amendment of the pleadings to conform to the proof at trial when the presentation of the merits will be subserved thereby without undue prejudice to the opposing party.
In its entirety, CR 15.02 reads:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleading as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
The interplay of these rules is important in this case because KDMC failed to affirmatively plead the defense of qualified privilege. The record reveals that the complaint in this action was filed on October 30, 2002, and this claim of privilege first appeared in written form in a pretrial memorandum filed on April 24, 2004. It was not, however, addressed by the parties and the court until October 24, 2004, which was the Friday before the trial was scheduled to begin on Monday. KDMC had filed a summary judgment motion to be heard on that date arguing that it was entitled to have judgment in the action because it had a qualified common interest privilege as a matter of law.
Calor responded that the privilege was an affirmative defense that had not been raised in the pleadings, and argued that KDMC was foreclosed from making the privilege argument due to its procedural default. After appearing to agree that the privilege was procedurally defaulted, the judge then engaged in discussions with counsel for both parties that indicated his belief that the privilege question was subsumed in the defamation claim, and that there were unanswered questions of fact for the jury. Consequently, the summary judgment motion was denied.
Counsel for KDMC continued at trial to raise the question of qualified privilege, either as a pure question of law or a question of fact, through two directed verdict motions and a tendered instruction laying out the elements of the privilege. The trial court refused to give the proposed instruction, and the case was submitted to the jury only on the defamation claim, the interference with a contract claim, and the punitive damages claim. However, because the procedural default should have been cured by the trial court allowing amendment under CR 15.02, and assuming that KDMC was entitled to claim the privilege, which is discussed below, the failure to instruct on the qualified privilege was error.
CR 15.02 applies specifically to issues raised at trial which have not been raised in the pleadings, and therefore is not in conflict with CR 8.02 and 12.02, which involve notice during the pleading and discovery stages of an action. The latter rules provide an opportunity to obtain judgment on the pleadings when applicable, and to allow targeted discovery which can lead to early settlement, thus promoting judicial economy. CR 15.02 requires that if evidence is offered at trial on unpleaded issues, the party opposing must object to the evidence as being offered on an unpleaded issue or the issue is deemed tried by express or implied consent and will be treated as if it had been raised in the pleadings. See Nucor Corp. v. General Elec. Co., 812 S.W.2d 136, 145 (Ky. 1991) ("It seems clear that at the trial stage the only way a party may raise the objection of deficient pleading is by objecting to the introduction of evidence on an unpleaded issue. Otherwise he will be held to have impliedly consented to the trial of such issue/' (quotation marks and citation omitted)).
If objection is made, the trial court may allow amendment of the pleadings as a general matter of discretion, but shall allow the pleadings to be amended if the issue goes to the merits of the case and there is no prejudice to the opposing party. The intent of the rule is to address issues arising out of the evidence actually presented at trial, and to ensure that if a new issue arises from that evidence, the full merits of the trial have been addressed. Id.
Here, this issue was not raised for the first time at trial, though it was raised after discovery was completed (except for several newly found boxes of files which caused the court to reschedule the trial to allow examination by Calor), and thus did not conflict with the purposes of CR 8.03 and CR 12.02. And, had the trial court not been mistaken about the law regarding qualified privilege in slander actions, as discussed below, it could have allowed an amendment at the pre trial on April 24, 2004.
Although Calor did object to the privilege issue at trial, she did not object to the evidence related to the privilege. In fact, such an objection would not have been successful, as the evidence presented in defense of the slander claim, the intentional interference claim, and the punitive damages claim is the same evidence that would be considered to determine the qualified privilege fact questions (e.g., was KDMC acting in good faith and in a reasonable manner?). Thus evidence was introduced at trial which addressed this unpleaded defense. The court is mandated by CR 15.02 to allow the amendment when it goes to the merits of the case and the opposing party will not be prejudiced. The proposed amendment went to the merits and Calor would not have been prejudiced, as none of the proof would have been significantly different.
Finally, that KDMC did not actually move the court to amend its answer and add the qualified privilege defense until after the proof was closed is no bar either. Under CR 15.02, the motion to amend may be made by "any party at any time, even after judgment. . . ." (Emphasis added.) The trial court should have allowed the amendment when requested during trial.
B. Defamation and the Privilege
The question then is whether KDMC was entitled to the protection of the privilege. This requires an examination of the law on slander and the qualified privilege of common interest. The essential elements of slander are: "(a) a false and defamatory statement concerning another; (b) an unprivileged communication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of harm or the existence of special harm caused by the publication/' Restatement (Second) of Torts § 558 (1977). When the communication concerns allegations of criminal behavior or unfitness to perform a job, which are not true, the communication is slander per se, and proof of context is not required.
Defamation actions in general involve (usually) intentional communications that are false and injurious to another's reputation or good name. When brought against a public official or a public figure, the plaintiff must prove that the defamatory statement was made with "actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). For the average citizen who leads a private life, however, published statements that are false and injurious and made with mere negligence are sufficient to allow recovery. Calor is not a public figure or elected official, so her burden was only to prove that the statements were false, damaging, and at least negligently made. Since the claim was for slander per se, she was not required to prove special damages.
The question before this Court is whether the statements were protected by the qualified privilege afforded to statements made in the course of a common business interest.
This Court has "recognized a series of qualified or conditional privileges, including where the communication is one in which the party has an interest and it is made to another having a corresponding interest." Stringer, 151 S.W.3d at 796 (quotation marks omitted). Basically, if the statement concerns an interest common to both parties, it is covered by the privilege. "The determination of the existence of privilege is a matter of law."' Id. (quoting Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 276 (Ky. App. 1981)).
Clearly, KDMC and Staff Care had a common interest in the accurate reporting of Calor's work hours. KDMC did not want to pay for hours she did not work, and Staff Care did not want to pay malpractice premiums for hours she did not work. This common interest allowed KDMC to assert a qualified privilege to the communication. The privilege is only applicable where the statements made were defamatory; otherwise, there is no need to resort to such a defense. In fact, KDMC specifically argued in its summary judgment motion that the trial court could assume the statements were defamatory in evaluating the privilege.
As noted above, the question of the existence of a qualified privilege is a question of law. KDMC showed a common interest with Staff Care, which is sufficient to show entitlement to the privilege as a matter of law. To this extent, the Court of Appeals was correct: KDMC demonstrated the existence of the qualified privilege.
"However, the key word is `qualified,' and the privilege can be lost if abused or exceeded. . . ." Stringer, 151 S.W.3d at 797. Merely asserting and demonstrating the existence of the privilege does not automatically relieve KDMC of liability, as the privilege is qualified. The privilege is not absolute, and its protection may be lost (or waived) through a defendant's actions that constitute abuse of the privilege.
The condition attached to all such qualified privileges is that they must be exercised
in a reasonable manner and for a proper purpose. The immunity is forfeited if the defendant steps outside the scope of the privilege, or abuses the occasion. The qualified privilege does not extend . . . to the publication of irrelevant defamatory matter with no bearing upon the public or private interest which is entitled to protection.
Id. (quoting
Tucker v. Kilgore, 388 S.W.2d 112, 115 (Ky. 1964)) (omission in original). Thus, there are questions of fact that control applicability of the privilege to a given defamatory statement (thus the use of the adjective "qualified"). Those questions of fact are qualifications or conditions which must be met to afford a defense.
The practical effect of this is that once a privilege has been placed in issue, the plaintiff may rebut the claim "by a showing that either there was no privilege under the circumstances or that it had been abused." Columbia Sussex Corp., 627 S.W.2d at 276; see also Restatement (Second) of Torts § 599 ("One who publishes defamatory matter concerning another upon an occasion giving rise to a conditional privilege is subject to liability to the other if he abuses the privilege.").
Abuse of the privilege occurs in a number of situations:
The privilege may be abused and its protection lost by the publisher's knowledge or reckless disregard as to the falsity of the defamatory matter; by the publication of the defamatory matter for some improper purpose; by excessive publication; or by the publication of defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged.
Restatement (Second) of Torts § 596 cmt. a (citing §§ 600-605A).
Whether the privilege is waived or abused, however, is a question properly submitted to a jury, and cannot be decided by a court as a matter of law. See Columbia Sussex Corp., 627 S.W.2d at 276 ("The determination of the existence of privilege is a matter of law. However, whether or not such has been waived is factual. A jury should be instructed accordingly/' (citation omitted)). KDMC submitted an instruction proclaiming the existence of the privilege but also reflecting the idea the privilege can be lost through abuse. Though that instruction reflected the law, and KDMC demonstrated that it was entitled to the privilege, the trial court declined to give the instruction.
Some Kentucky cases have indicated that all questions related to the qualified privileges are matters of law and therefore decidable only by a court. See, e.g., Landrum v. Braun, 978 S.W.2d 756, 758 (Ky. App. 1998). To the extent that these cases indicate that questions related to abuse or waiver of the privilege are to be determined by the court as questions of law, rather than by the jury as mixed questions of fact and law, they are overruled.
The only problem with KDMC's proposed instruction is that it treated the privilege separately from the elements of slander. The better instruction would be similar to the example in 2 John S. Palmore and Donald P. Cetrulo, Kentucky Instructions to Juries, Civil § 40.10 (5th ed. 2006 release no. 3, 2008), which incorporates the "abuse" into the slander instruction itself. However, Palmore and Cetrulo's instruction does not reflect all of the possible ways of abusing the privilege, listing only two of the four described above, and a proper instruction would reflect the relevant category of "abuse" applicable to a given case.
Such an instruction would have put Calor in the position of having to prove that KDMC abused the privilege, whether by not acting in a reasonable manner when it made the defamatory statements, by acting for an improper purpose, or by acting with reckless disregard or knowledge of the falsity of the statements. Her proof generally consisted of evidence that KDMC did not do a reasonable investigation of her time sheets, that it knew when it made the statement that it could not prove it, that it did not want to pay her for all the hours she worked, that it used this conflict to its advantage by not paying on other contracts it had with Staff Care, and that even after beginning to question her timesheets it continued to try to hire her on staff to reduce the cost of the locum tenens contracts.
The "reasonable manner" at issue in a defamation case is how the statement was communicated — i.e., only to those who share the common interest, not to the public large — and whether it contained additional defamatory matter that was unnecessary to accomplish the purpose of the privilege. Here, KDMC made the communication only to Staff Care or employees involved in both businesses, so KDMC could reasonably argue that the communication was confined to only people who were included in the qualified privilege. Similarly, the communication related only to Calor's billing and hours, which falls within the core of the interest shared by KDMC and Staff Care.
Similarly, Calor introduced sufficient evidence at trial to at least create a question of whether KDMC was acting for a proper purpose or in reckless disregard or with knowledge of the falsity of the statements (a requirement this Court's cases have usually described as whether the statement was "in good faith"). Calor offered proof that KDMC failed to adequately investigate its claims, since it had no evidence either way about the 670 hours it disputed and had not interviewed witnesses about whether Calor had been in the hospital during those times. In fact, the investigation was not completed when McDowell made the statements. Calor also offered proof that KDMC had an interest in ending her work as a locum tenens physician (as evidenced by their simultaneous negotiations with her to become a permanent — and thus less expensive — member of the hospital staff).
Consequently, the jury should have been instructed about the existence of the qualified privilege and instructed to determine whether KDMC abused the privilege. The Court of Appeals was incorrect to hold that KDMC was entitled to judgment as a matter of law and not requiring an instruction to the jury.
III. Conclusion
Having concluded that the Court of Appeals was erroneous in its holding that KDMC was entitled to judgment as a matter of law, but concluding that KDMC was entitled to an instruction on the qualified privilege, this Court will go no further because there are determinations to be made by the intermediate court before these issues will be reviewed by this Court. Therefore, the judgment of the Court of Appeals is reversed and this case is remanded to that court to determine the effect of the trial court's failure to give the necessary jury instruction on the qualified privilege and to address any other issues previously raised but not decided that are necessary for a complete resolution of this case.
Minton, C.J., Cunningham, Schroder, Scott and Venters, JJ., concur. Abramson, J., not sitting.
n appeal, Ottens argues that her motion to add Jake was not futile because the statute of limitations does not apply for two reasons: (1) the amendment related back to the original complaint,
see Utah R. Civ. P. 15(c), and (2) the discovery rule tolled the statute of limitations,
see Berneau v. Martirio, 2009 UT 87, ¶ 22,
223 P.3d 1128. With respect to her attempt to add D K, Ottens limits her argument on appeal to the contention that the claims against it relate back to the original complaint. We address each argument in turn.
A. Claims Against Jake and D K Do Not Relate Back to the Original Complaint.
¶ 42 Rule 15 anticipates the possibility that a party may seek to amend the pleadings after the expiration of the relevant statute of limitations. Where the new "claim or defense" arises out of the same "conduct, transaction, or occurrence . . . as set forth in the original pleading," the postexpiration amendment may be deemed to have been filed at the same time as the original pleading — to relate back. See Utah R. Civ. P. 15(c). However, rule 15 does not include any reference to the addition of new parties, see id. R. 15. In DoxeyLayton Co. v. Clark, 548 P.2d 902 (Utah 1976), our supreme court noted that omission and explained that the rule is typically limited to new claims because, if it also applied generally to parties, "the purpose of a statute of limitation would be defeated." See id. at 906.
¶ 43 Nevertheless, there are limited circumstances when a claim against a new party may relate back to the original complaint. "Utah courts have allowed the relation back of amendments to complaints incorporating newly named parties in two types of cases: (1) in so called misnomer cases,' and (2) where there is a true identity of interest.'" Penrose v. Ross, 2003 UT App 157, ¶ 11, 71 P.3d 631. Because the original complaint against Dan did not "contain[] a technical defect in the naming or identification of [Dan]," see id. ¶ 12, we focus our analysis on whether there was an identity of interest between Dan and Jake. To prevail on her relation back argument based on an identity of interest, Ottens had to establish that
Despite Ottens's attempt to characterize her confusion about who drove the green truck as a misnomer, there was no technical error that retion back of amendments to complaints incorporating newly named parties in two types of cases: (1) in so called misnomer cases,' and (2) where there is a true identity of interest.'" Penrose v. Ross, 2003 UT App 157, 1111, 71 P.3d 631. Because the original complaint against Dan did not "contain[] a technical defect in the naming or identification of [Dan]," see id. 1112, we focus our analysis on whether there was an identity of interest between Dan and Jake.22 To prevail on her relation back argument based on an identity of interest, Ottens had to establish that suited in Dan being served with the complaint. Rather, Ottens intended to name Dan and did so. Consequently, we do not consider Ottens's misnomer argument further.
(1) the amended pleading alleged only claims that arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading and (2) the added party had received (actual or constructive) notice that it would have been a proper party to the original pleading such that no prejudice would result from preventing the new party from using a statute of limitations defense that otherwise would have been available.
Gary Porter Constr. v. Fox Constr., Inc., 2004 UT App 354, ¶ 40,
101 P.3d 371;
see also Doxey-Layton, 548 P.2d at 906 (discussing the requirements for an amendment to relate back to the original pleading);
Penrose, 2003 UT App 157, ¶ 9,
71 P.3d 631 (discussing amendments that add parties).
¶ 44 There is no dispute that the claims against Jake and D K arose out of the same conduct and occurrence as set forth in the original complaint against Dan. Under those circumstances, "the only issue" is whether Jake and D K "had sufficient actual or constructive notice that [they] would have been a proper party to the original pleading before the [statute of limitations] expired." Gary Porter Constr., 2004 UT App 354, ¶ 42, 101 P.3d 371. Thus, to prevail on her argument that the claims against Jake and D K relate back to the complaint against Dan, Ottens had to establish that Jake and D K had actual or constructive notice of those claims before March 29, 200(3. See generally Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 216-17 (Utah 1984) (holding that claim was barred in the absence of evidence showing an identity of interest between the new party and any of the original parties).
¶ 45 One of the ways to establish notice is by proving that the original and new party share, "the same interest" concerning the litigation, including their legal defenses and positions, see Penrose, 2003 UT App 157, ¶¶ 15-19, 71 P.3d 631, such that "notice of the action against one serves to provide notice of the action to the other," Perry, 681 P.2d at 217; accord Gary Porter Constr., 2004 UT App 354, ¶ 35, 101 P.3d 371. We have previously referred to this method of proving constructive notice as the "Notice Transfer Test," and we use that nomenclature here, see Gary Porter Constr., 2004 UT App 354, ¶ 35, 101 P.3d 371. Ottens argues that she has met that burden under the Notice Transfer Test. The trial court concluded that Dan and Jake did not share an identity of interest because they did not have the same legal positions in the litigation and, thus, held that Ottens's proposed amendment would be futile. We agree that Ottens has not satisfied the Notice Transfer Test. With respect to her claim against Jake for improperly securing the load, however, our reasons for reaching that conclusion differ from those of the trial court.
The absence of identical interests will defeat the relation back of claims against a new defendant, even when it is reasonable to assume that notice to the original defendant served as notice to the new party. Compare Sulzen v. Williams, 1999 UT App 76, ¶ 15, 977 P.2d 497 (concluding that relation back was appropriate where notice to parents could be reasonably assumed to serve as notice to their minor child, who lived with them), with Penrose v. Ross, 2003 UT App 157, ¶ 10, 19-20, 71 P.3d 631 (concluding that despite shared residence, father and son had distinct legal interests preventing relation back).
1. Dan and Jake Share the Same Legal Position Only with Respect to the Claim that They Negligently Secured the Load.
¶ 46 Dan relies on our decision in Penrose to support his argument that he and Jake do not have the same legal position in the litigation. There, the plaintiff was injured when a car pulled out of a parking lot and collided with her vehicle. See Penrose, 2003 UT App 157, ¶ 71 P.3d 631. The plaintiff filed a complaint for negligence against the alleged driver, the father, only days before the expiration of the statute of limitations on her claim. See id. After the limitations period had expired, the plaintiff filed an amended complaint, correctly naming the original defendant's son as the driver. See id. ¶ 3. The father filed a motion for summary judgment, claiming that he was not the driver, and the son filed a motion for summary judgment, asserting that the claim against him was barred by the statute of limitations. See id. ¶ 5. The trial court granted both motions, concluding that the claim against the son did not relate back to the original complaint due to the absence of an identity of interest between father and son concerning the litigation. See id. ¶ 6. This court affirmed the trial court's conclusion that the legal interests of the father and son were not identical, reasoning that,
had [the plaintiffs o]riginal [c]omplaint properly named the parties, a disposition of the case against [the f]ather would not affect a determination as to [the son] because the two parties do not have the
same legal interest in the outcome of the case. [The f]ather's defense is that he was not negligent or liable because he was not the driver. On the other hand, [the son's] affirmative defense focuses on the running of the statute of limitations. Even if the claim had been properly filed, [the son's] defense would be that he did not act negligently. A disposition as to either party does not affect the claims or defenses available to the other party. Thus, where they do not have the same' legal interest there is no identity of interest.
Id. ¶ 19.
¶ 47 Similarly, to the extent Ottens's claims are based on any theory dependent upon negligent operation of the green truck, Jake and Dan do not share the same legal position. While Dan argues that he is not liable because he was not the driver, Jake would argue that the statute of limitations has expired and that he was not negligent in the operation of the vehicle. Therefore, the trial court correctly rejected Ottens's relation back theory based on the Notice Transfer Rule, as to the negligent driving claim. Cf. Russell v. Standard Corp., 898 P.2d 263, 265 (Utah 1995) (rejecting claim of identity of interest in libel action based solely on use of similar material in newspaper articles pursuant to agreement); Perry, 681 P.2d at 217 (rejecting claim of identity of interest based solely on the privity of contract between new and original parties). .
Ottens testified that the loaded pickup truck "just started pulling over, no signal, no nothing. And he pulled over and he was too close to me when he pulled over." "And he hadn't been there but just a second or two and this chair blew out of the back at windshield height."
¶ 48 With respect to Ottens's claim that both Jake and Dan failed to secure the load properly, however, their legal positions are identical. The evidence at trial established that they undertook the task of securing the load in the green truck together, passing rope through the various items and then fastening the rope to the eye hooks in the trucks. Because we have already concluded that the active participation in securing a load imposes a duty not to do so negligently, this aspect of Ottens's negligence claim is not dependent on also establishing the identity of the driver. Furthermore, the determination of liability as to either Dan or Jake would "depend[] on or affect[] the determination of the issues as to the other," see Penrose v. Ross, 2003 UT App 157, ¶ 16, 71 P.3d 631 (internal quotation marks omitted), because a finding as to whether it was negligently secured and caused Ottens's injuries in an action against one of them necessarily affects the liability of the other.
2. Ottens Did Not Establish that Notice to Dan Served as Notice to Jake.
¶ 49 Notwithstanding our determination that the legal positions of Jake and Dan are the same with respect to the claim that they negligently secured the load, we conclude that it is not "reasonable to assume that notice of the substance of the claims against [Dan] served as notice to [Jake]." See Gary Porter Constr. v. Fox Constr., Inc., 2004 UT App 354, ¶ 36, 101 P.3d 371. Unlike our decision in Sulzen v. Williams, 1999 UT App 76, 977 P.2d 497, where we held that it was "entirely reasonable to assume that" notice to the parents served as notice to their minor child residing in the home where service was affected, see id. ¶ 15, Dan and Jake do not live together and the record is silent concerning the frequency of their communications. Furthermore, we reject an invitation to adopt a per se rule that notice to a parent is always notice to the parent's child, irrespective of the child's age or location. Cf. Gary Porter Constr., 2004 UT App 354, ¶ 43, 101 P.3d 371 (refusing to adopt a per se rule that notice to a general contractor constitutes notice to its surety). This is particularly appropriate in cases such as this, where the record contains no evidence concerning Dan's and Jake's earliest discussions about the litigation, the circumstances and timing of the representation of Jake by Dan's lawyer, or any other facts showing that Dan's and Jake's interests were so intertwined that notice to Dan effectively notified Jake.
At the time Ottens served the original complaint on March 13, 2006, Dan lived in a remote area of Oregon, while Jake resided in Utah. Dan was then approximately fifty years old and Jake was approximately twenty-six years old.
Knowledge may be imputed where the new party shared counsel with the original party "prior to the running of the statute of limitations." Gary Porter Constr v. Fox Constr., Inc., 2004 UT App 354, ¶ 44, 101 P.3d 371 (remanding for further proceedings where the record did not indicate whether new and original parties "shared counsel prior to the lapse of the [statute of limitations]"). Here, Jake was represented at his deposition, taken after the limitations period had expired, by the same counsel as Dan. The record does not contain any information as to when counsel first met with or represented Jake. Furthermore, this issue was addressed only in passing by Ottens in the context of her claims against D K where she speculates that D K would most likely hire the same counsel as Dan, and is inadequately briefed, see generally Utah R.App. P. 24(a)(9) (outlining briefing requirements); State v. Lucero, 2002 UT App 135, 1111 8-9, 47 P.3d 107 (holding that an appellate court need not consider issues that are inadequately briefed).
¶ 50 Because we hold that, under the Notice Transfer Test, Jake did not have constructive notice within the limitations period, we consider whether Jake's actual knowledge can be shown from other circumstances. See generally id. ¶ 42 ("[T]he Notice Transfer Test . . . is merely one way of demonstrating that an added party had sufficient notice to avoid prejudice."). We conclude that Ottens did not present any evidence that could support a finding that Jake had actual knowledge of the claims asserted against Dan before the statute of limitations expired.
¶ 51 Jake learned of the proceedings, at the latest, on July 10, 2006, when he was served with a subpoena duces tecum scheduling his deposition for August 10, 2006. However, the subpoena was served after the statute of limitations ran, and there is no evidence concerning the level, if any, of Jake's knowledge or his unofficial involvement in the proceedings before he received the deposition subpoena. See generally Nunez v. Albo, 2002 U? App 247, ¶ 30, 53 P.3d 2 (holding that the medical malpractice claim against a university related back to the original complaint against the treating physician where the university provided counsel to the physician and directed the defense from the start). And there is no other evidence in the record concerning Jake's first knowledge of or participation in the lawsuit.
¶ 52 Despite two opportunities, the first of which was presented at a hearing on the motion to amend, made approximately five months after she received Dan's answer, and the second of which occurred after approximately three days of trial, Ottens failed to produce the evidence necessary to support a finding that Jake had constructive or actual notice that he was a proper party to the complaint before the limitations period expired. Under these circumstances, we affirm the first trial judge's conclusion that the claims against Jake, including the allegations based on negligently securing the load, do not relate back to the original complaint and were barred by the statute of limitations. Cf. Penrose, 2003 UT App 157, ¶ 6, 21, 71 P.3d 631 (affirming the trial court's entry of summary judgment based on the statute of limitations where there was no dispute that the parties' interests concerning the litigation were not identical). But see Gary Porter Constr., 2004 UT App 354, ¶ 46, 101 P.3d 371 (remanding for further proceedings to determine whether the new party had actual or constructive notice where there were disputed issues of fact and the case was resolved by summary judgment).
3. D K and Dan Do Not Share an Identity of Interest.
¶ 53 We next address Ottens's assertion that the second trial judge erred by denying her latetrial motion to amend the complaint to add D K as a party. According to Ottens, such an amendment would relate back to her original complaint because Dan and D K shared an identity of interest. Again, we are not convinced.
¶ 54 As discussed, relation back in the context of adding parties after the statute of limitations has expired is dependent both on whether notice to one also notified the other and whether the legal positions of the original and proposed party are the same. See Penrose, 2003 UT App 157, ¶¶ 15-17, 71 P.3d 631 (affirming summary judgment based on statute of limitations where, despite notice, the new party's interests concerning the litigation were not the same as the original party's interests). The defenses asserted by Dan and those likely to be advanced by D K are not identical; to some extent, they are directly contrary.
¶ 55 While both Dan and D K would assert that the chair was not negligently secured, they would be in direct disagreement as to which of them bears the risk of a contrary determination. Dan's defense is that he and Jake were working for the company on the day of the move and that any liability for negligence falls squarely on D K. As we have already held, Ottens has not proved that D K is the alter ego of Dan. Therefore, there is no reason to conclude that D K, which was owned equally by Dan and his former wife, would not offer its own defense. Because D K was not named as a defendant, we can only speculate what those defenses would have been. It is apparent, however, that D K can best defend against liability for negligence by distancing itself from the actions of Dan and Jake. Logically, D K would argue that Dan was not acting within the course and scope of his employment, that Dan had hired Jake personally to assist with his move to a new residence, and that Dan is personally liable for any damage to Ottens. Had it been a party to the action, D K may have provided the evidence necessary to establish these defenses. While a determination of whether Dan was acting in his individual capacity would affect the claim against D K, see generally id. ¶ 6, each party would be arguing for a different conclusion on that point. Therefore, we hold that there is not an identity of interest between the company and Dan. As a result, the amendment to add D K would not relate back to the original complaint and, thus, would be barred by the statute of limitations.
¶ 56 This conclusion is consistent with the underlying premise that a party should be added after the running of the limitations period only when there will be no prejudice. See Doxey-Layton Co. v. Clark, 548 P.2d 902, 906 (Utah 1976) (explaining that where the "new and old parties have an identity of interest . . . it can be assumed or proved the relation back is not prejudicial"). Here, even though notice to Dan, a corporate officer, might be considered notice to the company, the conflict in their legal interests would be prejudicial to D K, which is equally owned by Dan's former wife. If D K had been added as a defendant near the close of evidence, it would have suffered from Dan's pursuit of his personal interests in the litigation, notwithstanding the contrary interests of D K. The requirement that the new and old parties' positions in the litigation be the same assures that such prejudice to the company and its other owner does not occur. For these reasons, we also agree with the trial court that Ottens's motion was untimely and prejudicial.
We need not address Dan's argument that adding D K during the closing stages of the trial would violate the Due Process clauses of the United States and Utah Constitutions, see U.S. Const. amend. XIV; Utah Const. art. I, § 7, because of our conclusion that the legal interests of D K and Dan are not identical and that the motion was otherwise untimely. See generally Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158 (holding that an appellate court may affirm "on any legal ground . . . apparent on the record" (emphasis and internal quotation marks omitted)); State v. Thurman, 846 P.2d 1256, 1262 (Utah 1993) (holding that courts avoid reaching constitutional questions unless it is necessary to do so).
B. The Statute of Limitations on Ottens's Claims Against Jake Should Not Be Tolled Under the Equitable Discovery Rule.
¶ 57 As an alternate basis for her position that the amendment to add Jake as a defendant would not be futile, Ottens argues that the statute of limitations should have been tolled under the equitable discovery rule. If she is correct, an order granting Ottens leave to amend the complaint to add all of her claims against Jake would not have been futile. While a statute of limitations "ordinarily begins to run upon the completion of a cause of action, the equitable discovery rule may nonetheless operate to toll the limitations period until the time at which a party discovered or reasonably should have discovered [the] facts forming the basis for the cause of action." Berneau v. Martirio, 2009 UT 87, ¶ 22, 223 P.3d 1128 (internal quotation marks omitted). Our supreme court has identified two situations that can support the application, of the equitable discovery rule: first, where "a plaintiff does not become aware of the cause of action because of the defendant's concealment or misleading conduct," and second, where "the case presents exceptional circumstances and the application of the general rule would be irrational or unjust, regardless of any showing that the defendant has prevented the discovery of the cause of action." Id. ¶ 23 (internal quotation marks omitted). Before either of these doctrines can be applied, the party seeking relief from the statute of limitations must make an initial showing that the party "did not know and could not reasonably have discovered the facts underlying the cause of action in time to commence an action within [the limitations period]." Colosimo v. Roman Catholic Bishop of Salt Lake, 2007 UT 25, ¶ 19, 156 P.3d 806 (alteration in original) (internal quotation marks omitted); accord Macris v. Sculptured Software, Inc., 2001 UT 43, ¶ 18, 24 P.3d 984. The determination of whether the party has made that initial showing is a question of fact. See Berneau, 2009 UT 87, ¶ 23, 223 P.3d 1128.
1. We Assume that Ottens Satisfied the Initial Showing Required to Invoke the Equitable Discovery Rule.
¶ 58 Here, the parties disagree about whether Ottens has made that initial showing. Ottens contends that because the accident report and the citation both identified Dan as the driver, she had no reason to question that information until she received Dan's answer only two days before her claims against Jake were barred by the statute of limitations. She further argues that to do otherwise would have been improper because the information was unreliable and imprecise. See generally Robinson v. Morrow, 2004 UT App 285, ¶ 24, 99 P.3d 341 (holding that the limitations period is tolled under the fraudulent concealment branch of equitable discovery until "the plaintiff receives reliable and precise information sufficient to give reasonable assurance that the defendant is in fact the tortfeasor"). Indeed, we have admonished that "[r]ule 11 requires the plaintiffs attorney to certify that the allegations and other factual contentions have evidentiary support or . . . are likely to have [it] after a reasonable opportunity for further investigation or discovery,'" id. ¶ 24 n. 3 (quoting-Utah R. Civ. P. 11(b)(3)), and that "a plaintiff may be sanctioned for bringing a claim merely founded on innuendo and suspicion," id. (internal quotation marks omitted).
¶ 59 Dan has not offered any evidence that Ottens knew or should have known sooner that the report and citation were erroneous. Instead, Dan notes that Ottens served the original complaint only weeks before the end of the limitations period, but cf. Berneau, 2009 UT 87, ¶¶ 6, 32, 223 P.3d 1128 (holding that exceptional circumstances tolled the limitations period for appointment of a personal representative even though the plaintiff filed the original complaint "near the end. of the . . . statute of limitations period"), and that the motion for leave to add Jake was not made until almost six months after Dan identified Jake in his answer. However, if Ottens reasonably could not have known Jake was the driver before she received the answer, the threshold question is whether she could still have filed her claims against Jake within the two days remaining in the limitations period, see id. ¶ 23; Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶¶ 30, 32, 108 P.3d 741. The resolution of this issue is a question of fact. See Berneau, 2009 UT 87, ¶ 23, 223 P.3d 1128. For purposes of our analysis, we assume that the fact finder would have resolved in Ottens's favor the question of whether a reasonable plaintiff would have sued Jake during the limitations period remaining after Ottens reasonably should have known of Jake's involvement. Thus, we assume, without deciding, that Ottens has made the initial showing required under either prong of the discovery rule.
While Russell Packard Development, Inc. v. Carson, 2005 UT' 14, ¶ 25, 108 P.3d 741, considered only the fraudulent concealment basis for application of the equitable discovery rule, we see no reason its analysis would not equally apply to the initial showing required in the context of an assertion of exceptional circumstances.
We acknowledge, however, that if Ottens's exceptional circumstances argument did not fail on other grounds, we would be compelled to remand this issue to the trial court for further proceedings. See generally Russell Packard, 2005 UT 14, ¶ 45-46, 108 P.3d 741 (remanding for further proceedings to resolve contested issues of material fact concerning when claims against new party should have been discovered).
2. Ottens Has Not Established that the Limitations Period Should Be Tolled.
¶ 60 We now turn to whether Ottens has shown grounds for tolling the limitations period. Ottens focuses much of her brief on Dan's actions, which she contends prevented her from filing her complaint sooner and concealed Jake's participation. However, she seeks tolling of the statute of limitations only under the exceptional circumstances branch of the equitable discovery rule. Indeed, when quoting from the supreme court's decision in Russell Packard Ottens substitutes the supreme court's description of the fraudulent concealment basis for application of the rule with "[inapplicable to this case]." See Russell Packard, 2005 UT 14, ¶ 25, 108 P.3d 741. And in her reply to Dan's argument that his acts cannot be imputed to Jake, Ottens states that she "is not constrained to prove Jake committed malfeasance" but "must only show she reasonably delayed in filing her complaint due to exceptional circumstances.'" Consequently, we limit our analysis to the exceptional circumstances prong of the equitable discovery rule.
¶ 61 The exceptional circumstances branch of the equitable discovery rule was adopted by the Utah Supreme Court in Myers v. McDonald, 635 P.2d 84, 87 (Utah 1981). Subsequent cases interpreting the exceptional circumstances branch of the equitable discovery rule have clarified that tolling is appropriate only "in situations where the case presents exceptional circumstances and the application of the general rule would be irrational or unjust." Burkholz v. Joyce, 972 P.2d 1235, 1235 (Utah 1998) (internal quotation marks omitted); see also Breiggar Props., LC v. H.E. Davis Sons, Inc., 2002 UT 53, ¶ 7 n. 2, 52 P.3d 1133 (refusing to broaden the definition of exceptional circumstances to include circumstances where the application of the statute of limitations would not be irrational or unjust); Macris, 2001 UT 43, H 28, 24 P.3d 984 (refusing to toll statute' of limitations where, even assuming party could make initial showing, there was nothing irrational or unjust about application of the limitation period); Cedar Prof I Plaza, LC v. Cedar City Corp., 2006 UT App 36, ¶ 3, 131 P.3d 275 (refusing to toll limitations period where there is nothing exceptional about the facts of the case). Ottens cannot meet either of these requirements.
¶ 62 The Utah Supreme Court's most recent discussion of the kinds of exceptional circumstances that warrant tolling of the limitations period is found in Berneau v. Martino, 2009 UT 87, 223 P.3d 1128. There, the supreme court reiterated that "the discovery rule balances the equitable interests of the potential plaintiff and defendant where the potential plaintiff has discovered [new] facts forming the basis for the cause of action.'" Id. ¶ 22 (alteration in original) (quoting Beaver Cnty. v. Property Tax Div. of the Utah State Tax Comm'n, 2006 UT 6, ¶ 53, 128 P.3d 1187). "The ultimate determination of whether a case presents exceptional circumstances is a question of law and turns on a balancing test," id. ¶ 23 (internal quotation marks omitted), that "examines [t]he hardship the statute of limitations would impose on the plaintiff . . . [as compared with] any prejudice to the defendant from difficulties of proof caused by the passage of time,'" id. (first alteration in original) (quoting Myers, 635 P.2d at 87).
¶ 63 The supreme court has identified several factors which may be relevant to the application of the balancing test, including
whether the defendant's problems caused by the passage of time are greater than the plaintiffs, whether the defendant performed a technical service that the plaintiff cannot reasonably have been expected to evaluate, and whether the claim has aged to the point that witnesses cannot be located, evidence cannot be found, and the parties cannot remember basic events.
Sevy v. Security Title Co. of S. Utah, 902 P.2d 629, 636 (Utah 1995). Here, Jake's problems caused by the passage of time are greater than Ottens's. Ottens has been pursuing remedies against various parties for the injuries she claims were caused, at least in part, by Dan's and Jake's negligence since shortly after the March 29, 2002 accident. During that time, she has had the opportunity to investigate the circumstances of the accident and to preserve the evidence supporting her claims, including the ability to locate witnesses and memorialize their perceptions of the event. In contrast, Jake was completely unaware that any legal action had or would be initiated until years later. While Ottens chose not to investigate her claims thoroughly until the eleventh hour, Jake was given no choice in the matter. Jake did not know he had any reason to preserve the evidence because there is nothing in the record to establish that he was aware of Ottens's allegations. In addition, there is nothing technical about securing this type of load or driving the green truck that would have prevented Ottens from bringing her action sooner. And by the time Ottens took their depositions, the claims had aged to the point that Dan and Jake had difficulty remembering many of the basic facts, including who assisted with the move, whether Jake returned to work at D K that day, and whether Dan spoke with the police immediately after the accident. Likewise, there was obvious difficulty locating witnesses, and the chair itself could not be found.
¶ 64 We are also convinced that there is nothing unique or exceptional about this case that might tip the balance in favor of Ottens. The exceptional circumstances branch of the equitable discovery rule provides a narrow exception to the court's enforcement of the plain language of legislative enactments, see Myers, 635 P.2d at 86-87. By tolling the statutory limitations period pursuant to this doctrine, a court necessarily rejects the balance struck by the legislature between allowing the pursuit of legal remedies and protecting against the difficulties of defending stale claim. As the name indicates, the case must present exceptional circumstances to warrant application of the doctrine; cases presenting ordinary situations in which the party seeking relief did not discover the claim before the deadline set by the legislature had expired are not included, see Breiggar Props., 2002 UT 53, ¶ 7 n. 2, 52 P.3d 1133 (holding that plaintiffs confusion as to the applicable statute of limitations for trespass and continuing trespass did not present exceptional circumstances); Cedar Prof I Plaza, 2006 UT App 36, ¶ 13, 131 P.3d 275 (noting that the submission of an otherwise compliant notice to the wrong governmental agent did not present exceptional circumstances).
¶ 65 For example, Myers involved guardians who, despite diligent efforts to locate their ward after he was assumed to have run away from home, first learned of his death after the limitations period had expired. See 635 P.2d at 85. Nevertheless, the guardians filed a complaint against the alcohol-impaired driver alleged to have killed their ward, and the driver moved for summary judgment based on the statute of limitations. See id., In adopting and applying the exceptional circumstances branch of the discovery rule, the Myers court stressed the unique circumstances of the case, the guardian's diligent efforts to find their ward, and the inability of the guardians to investigate the circumstances of their wrongful death claim when they did not know their ward was dead until after the end of the limitations period, see id. at 86-87.
¶ 66 The circumstances were equally compelling in Berneau. In that case, the plaintiff was injured in a car accident and sued the driver of the vehicle "near the end of the four-year statute of limitations." Berneau, 2009 UT 87, ¶ 6, 223 P.3d 1128. Over the next three years, counsel for the plaintiff "engaged in ongoing written and verbal communications" with counsel for the insurer of the driver. Id., ¶ 5. What neither lawyer knew was that the twenty-two year old driver had died shortly after the accident from unrelated causes. See id. ¶ 4. Upon first learning of the driver's death after the limitations period ran, the plaintiff filed an amended complaint naming the driver's estate. See id. ¶¶ 6-7. The trial court granted the insurer's motion to dismiss the amended complaint due to the plaintiffs failure to appoint a personal representative within three years of the driver's death as required by statute. See id. ¶¶ 7-8. The Utah Supreme Court reversed, concluding that the case presented exceptional circumstances for a number of reasons, including that the legislative intent evidenced by the limitations period for the appointment of a personal representative conflicted with the legislative intent expressed by the four-year statute of limitations in which the underlying claim could be brought. See id. ¶ 21. Concluding that the situation presented was indeed extraordinary, the Berneau court tolled the limitations period for appointment of a personal representative for the estate. See id. ¶ 32.
¶ 67 We see nothing exceptional about a plaintiff waiting until the end of the limitations period and then learning that the underlying assumptions of her claim were erroneous. Rather, that is the risk to all parties who delay litigation of a claim with a statutorily mandated time limit. See Estes v. Tibbs, 1999 UT 52, ¶ 7, 979 P.2d 823 ("Many claimants lose the opportunity to pursue a cause of action when a statute of limitations is applied to their individual cases."). Indeed, the Utah Supreme Court has cautioned,
"The doctrine of equitable tolling should not be used simply to rescue litigants who have inexcusably and unreasonably slept on their rights, but rather to prevent the expiration of claims to litigants who, through no fault of their own, have been unable to assert their rights within the limitations period."
Beaver Cnty. v. Property Tax Div. of the Utah State Tax Comm'n, 2006 UT 6, ¶ 32,
128 P.3d 1187;
see also Estes, 1999 UT 52, ¶ 9,
979 P.2d 823 ("[A]pplication of the special circumstances exception' must be reserved for instances where it would be truly irrational' or unjust' to apply a statute of limitations."). Ottens was not unable to assert her claims sooner; there was nothing that prevented her from serving the complaint on Dan earlier, taking discovery, and naming Jake within the limitations period. Instead, Ottens waited until less than twenty days before the four-year limitations period expired before serving the complaint on Dan. We conclude that the facts of this case do not support application of the exceptional circumstances branch of the equitable tolling doctrine. Because her relation back claim also fails, the trial court was correct that the proposed amendment to add Jake would have been futile.
III. The Evidentiary Rulings
¶ 68 Finally, we address Ottens's assertion that the trial court erred in excluding the traffic citation and admitting evidence regarding when Ottens retained legal counsel. We agree with the trial court that the citation was not relevant to the issues before the jury. With respect to the date when Ottens retained counsel, however, we disagree with the trial court's assessment that it is relevant.
We decide these issues because they are "likely to reoccur on remand" of the claim against Dan for negligently securing the load. See Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 53, 176 P.3d 476.
A. The Traffic Citation Is Not Relevant.
¶ 69 We turn first to Ottens's claim that the traffic citation should have been admitted because it was relevant to the issue of who was driving the vehicle. While the parties focus their arguments on rule 416 of the Utah Rules of Evidence, which provides that "[e]vidence that a person was convicted under a provision of Utah Code Annotated Title 41, Chapter 6a, of an infraction or class C misdemeanor is not admissible on the issue of whether the person acted negligently or otherwise wrongly, or to impeach the person's testimony on those issues," Utah R. Evid. 416, the issue is. more easily resolved under rule 402, which excludes irrelevant evidence, see id. R. 402. Dan argues that the trial court properly excluded the citation as irrelevant because Dan and Jake both conceded that Jake, rather than Dan, was driving the car, and therefore, "the question of who was driving was not at issue." We agree.
A copy of the traffic citation was not included in the record, so we cannot determine the title and chapter of the Utah Code under which it was issued. Indeed, we express no opinion as to whether rule 416 of the Utah Rules of Evidence has any application to this case.
¶ 70 Ottens's amended complaint alleges that Jake drove the truck from which the chair fell. Dan conceded this point, and Jake confirmed it in his deposition. Although Ottens had originally sued Dan as the driver, she had abandoned that claim before trial. Consequently, the fact that the citation erroneously identified Dan as the driver was irrelevant to the issues that had been joined at trial. See generally id. R. 401 ("Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (emphasis added)); id. R. 402 ("Evidence which is not relevant is not admissible."). Under these circumstances, we cannot say that the trial court exceeded its discretion in excluding the citation.
B. When Ottens Hired an Attorney Is Not Relevant.
¶ 71 Finally, we address Ottens's argument that the trial court erred when it permitted Dan to introduce evidence concerning when Ottens retained counsel. According to Ottens, that evidence was both irrelevant and improper because Dan used it to suggest that Ottens "retained an attorney not to protect her legal rights, but to plot with her attorney regarding how to run the [medical] bill up and dishonestly fabricate a case against Dan." In response, Dan argues that, under Pennington v. Allstate Insurance Co., 973 P.2d 932 (Utah 1998), evidence regarding when a party retained counsel is relevant because "early attorney involvement may imply, under the right circumstances, that the treatment was not reasonable." However, the issue addressed in Pennington arose in a different context. There, the supreme court considered the attorney's involvement on behalf of a plaintiff in a personal injury action as part of its determination of whether the attorney's attempt to recover unreasonable medical expenses justified sanctions under rule 11 of the Utah Rules of Civil Procedure, see id. at 938-39; see also Utah R. Civ. P. 11.
¶ 72 From the record before us on appeal, it does not appear that Dan contends that Ottens's attorney unethically inflated her medical expenses. Therefore, we agree with Ottens that, based on Dan's assertions, the time when she hired counsel was not relevant.
CONCLUSION
¶ 73 Because competent evidence could support a finding that Dan was directly liable for negligently securing the fully loaded trucks, we reverse the trial court's entry of a directed verdict in favor of Dan on that claim. However, we affirm the trial court's directed verdict in favor of Dan on Ottens's vicarious liability claim based on her assertion that Dan personally employed Jake on the day of the move.
¶ 74 We hold that neither the claims against D K nor those against Jake relate back to the original complaint. We also conclude that, even if all factual issues are resolved in favor of Ottens, this case does not present exceptional circumstances that could toll the statute of limitations under the equitable discovery rule.
¶ 75 Finally, the trial court did not exceed its discretion in excluding the traffic citation, but it should have also excluded the evidence as to when Ottens first retained counsel.
¶ 76 Consequently, we remand for trial on the theory that Dan negligently secured the fully loaded trucks but affirm the dismissal of the other claims against Dan and .the denial of Ottens's motions to add D K and Jake as parties after the limitations period had expired.
¶ 77 Affirmed, in part; reversed and remanded, in part.
¶ 78 WE CONCUR: JAMES Z. DAVIS, Presiding Judge and J. FREDERIC VOROS JR., Judge.