2014 UT App 197
_________________________________________________________
THE UTAH COURT OF APPEALS
E.J. SUTTON ,
Plaintiff and Appellant,
v.
BOB MILES,
Defendant and Appellee.
Opinion
No. 20130297-CA
Filed August 14, 2014
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 100914201
Karra J. Porter, Nathan R. White, John Edward
Hansen, and David S. Bridge, Attorneys
for Appellant
Julianne P. Blanch, Scott C. Powers, and Robert T.
Denny, Attorneys for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in
which JUDGE GREGORY K. ORME concurred. JUDGE J. FREDERIC
VOROS JR. concurred in the result, with opinion.1
BENCH, Senior Judge:
¶1 E.J. Sutton appeals the trial court’s grant of summary
judgment in favor of Bob Miles, which was based on its
determination that Miles was an agent or employee of Lowell
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
Sutton v. Miles
Construction Co. (Lowell) at the time of the accident from which
Sutton’s tort claims arise and was therefore immune from suit
pursuant to a release signed by Sutton in favor of Lowell (the
Release). We reverse and remand for further proceedings.
BACKGROUND
¶2 In 2007, Sutton was employed by R.W. Construction and
Miles was employed by Byer Excavating. Both companies were
subcontractors working on the construction of a new home in
Summit County. Although Sutton and Miles worked for different
companies, Sutton was the superintendent “in charge” at the work
site.
¶3 At the time Sutton and Miles were working on their site,
construction of another new home was taking place on an adjacent
lot. Lowell was the general contractor for the second home. On
August 1, 2007, Lowell received a load of rebar at its construction
site, and Lowell’s superintendent, Don Jones, asked Sutton if he
and Miles would assist with unloading the rebar. While moving a
load of rebar with his trackhoe, Miles accidentally dropped it on
Sutton, who was seriously injured.
¶4 Sutton initially filed suit against Byer Excavating, Lowell,
and James H. Diamond Concrete. See Sutton v. Byer Excavating, Inc.,
2012 UT App 28,
271 P.3d 169. While that litigation was still
ongoing, Sutton filed this separate suit against Miles.
¶5 In the first suit, Byer Excavating moved for summary
judgment on the ground that Miles was not acting in the course
and scope of his employment at the time of the accident. Id. ¶ 4.
The trial court granted Byer Excavating’s motion, and its decision
was upheld on appeal. Id. ¶ 1.
¶6 In August 2010, Lowell and James H. Diamond Concrete
reached a settlement with Sutton. Pursuant to the settlement,
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Sutton signed the Release, discharging “Lowell Construction . . .
and all of [its] agents, employees, representatives, . . . and assigns,
from any and all claims and causes of action . . . arising out of, or
in any way connected with the incident of August 1, 2007.” The
parties then filed a stipulated motion to dismiss the claims against
Lowell and James H. Diamond Concrete.
¶7 Sutton continued to pursue his claims against Miles, and in
March 2011, Miles amended his answer to assert that the Release
barred Sutton’s claims against him. Miles then filed a motion for
summary judgment asserting that, as a matter of law, he was either
an agent, an employee, a representative, or an assign of Lowell at
the time of the incident and was therefore covered by the Release.
The trial court granted the motion for summary judgment,
determining that “while unloading the rebar for Lowell, Mr. Miles
became an agent and/or employee of Lowell.” Sutton appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Sutton asserts that genuine issues of fact exist regarding
whether Miles was an agent or an employee of Lowell at the time
of the accident and that the trial court therefore erred in
determining that Miles was “an agent and/or employee” of Lowell
as a matter of law. Summary judgment is appropriate where “there
is no genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c).
“An appellate court reviews a trial court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness and
views the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party.” Orvis v. Johnson,
2008 UT 2, ¶ 6,
177 P.3d 600 (citations and internal quotation marks
omitted).
¶9 Miles asserts that even if he was not an agent or an
employee of Lowell, he could be considered either an assign or a
representative as a matter of law and that we should therefore
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Sutton v. Miles
affirm the trial court’s summary judgment ruling on alternative
grounds. “We may affirm a grant of summary judgment upon any
ground apparent in the record.” Park v. Stanford, 2011 UT 41, ¶ 27,
258 P.3d 566 (citation and internal quotation marks omitted).
ANALYSIS
I. Disputed Issues of Fact on Whether Miles Was Lowell’s Agent
¶10 In order for an agency relationship to arise, three elements
must exist: (1) the principal must manifest its intent that the agent
act on its behalf, (2) the agent must consent to so act, and (3) both
parties must understand that the agent is subject to the principal’s
control. Wardley Corp. v. Welsh, 962 P.2d 86, 89 (Utah Ct. App. 1998).
Sutton asserts that none of these elements can be established as a
matter of law. We agree with the trial court that the first element
was established as a matter of law, but we agree with Sutton that
disputed issues of fact relating to the second and third elements
preclude summary judgment.
¶11 “A principal’s manifestation of assent to an agency
relationship may be informal, implicit, and nonspecific.”
Restatement (Third) of Agency § 1.01 cmt. d (2006). It is undisputed
that Jones asked Sutton to enlist Miles to assist him in unloading
the rebar or, in other words, to act for the benefit of Lowell. This
was a sufficient manifestation of intent to satisfy the first element
of the agency test. The only argument Sutton raises in support of
his assertion that Lowell did not manifest its intent for Miles to act
on its behalf is a policy argument: he maintains that one cannot
manifest an intent for another to act on his behalf merely by asking
for a favor because then vicarious liability would arise any time
someone agreed to do a favor for someone else. As Sutton puts it,
Someone who asks a friend to pick up his drycleaning would be vicariously liable if the friend
struck a pedestrian in the parking lot. Someone who
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Sutton v. Miles
asks a dinner guest to pass a cup of coffee would be
vicariously liable if the guest negligently spilled the
hot liquid on a fellow guest.
But this argument ignores the third element of agency: that both
parties must understand that the agent is subject to the principal’s
control. Wardley, 962 P.2d at 89. The existence of this element
precludes the widespread application of vicarious liability in the
manner outlined by Sutton.
¶12 With respect to the second element, disputed facts exist
regarding whether Miles manifested his intent to act on behalf of
Lowell. Miles’s testimony indicates that he did not want to help
unload the rebar but did so at the request of Sutton, whom Miles
considered to be his boss. Miles never spoke to Jones and testified
that the reason he went to the Lowell site to unload the rebar was
because his supervisor, Sutton, told him to. This evidence could
lead a factfinder to conclude that there was no “meeting of the
minds” between Lowell and Miles regarding Miles’s assent to act
as Lowell’s agent, see
id., and that Miles instead believed that he
was acting under the direction of Sutton, who was his supervisor
for the project he was hired to work on.
¶13 Likewise, there were disputed facts regarding whether Miles
was subject to Lowell’s control. The control element focuses on
whether the principal “controls, or has the right [to] control, the
manner in which the operations are to be carried out,” Mallory v.
Brigham Young Univ.,
2014 UT 27, ¶ 21 (alteration in original)
(emphasis added) (citation and internal quotation marks omitted);
“if the control extends only to the result to be achieved, the actor is
regarded as an independent contractor,” Foster v. Steed,
432 P.2d 60,
62 (Utah 1967) (emphasis added). The right-of-control test
considers several factors, none of which is “completely
controlling”: (1) the existence of covenants or agreements
“concerning the right of direction and control over the [agent],” (2)
whether the principal has “the right to hire and fire” the agent, (3)
“the method of payment (i.e., wages versus payment for a
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Sutton v. Miles
completed job or project),” (4) who furnishes the equipment, (5)
“the intent of the parties,” and (6) “the business of the employer.”2
Glover ex rel. Dyson v. Boy Scouts of Am., 923 P.2d 1383, 1385–86
(Utah 1996) (citation and internal quotation marks omitted).
¶14 The trial court’s list of undisputed facts includes that “the
unloading of the rebar by Mr. Sutton and Mr. Miles was at the
direction of Lowell” and that “Lowell was in charge of and
oversaw the work being done in relation to unloading the rebar
that Mr. Miles and Mr. Sutton were helping with.” However,
Sutton continually disputed these facts in his opposition to Miles’s
motion for summary judgment, citing deposition testimony
indicating that Miles furnished the equipment used for the
unloading, that Lowell did not provide any instructions to Sutton
or Miles regarding how the unloading was to be performed, that
Sutton determined the methods for unloading without input or
opposition from Lowell, that Lowell deferred to Sutton’s expertise,
and that the individuals working on the project considered Sutton
to be in charge.
¶15 Miles testified that he considered Sutton to be in charge of
the unloading. Three additional witnesses, including Miles’s own
expert, also testified that Sutton was in charge of the unloading.
Although Jones testified that Lowell was in charge of the unloading
operation and that Sutton and Miles “became part of [his]
operation” by helping him unload the rebar, he also testified that
he did not give any direction to Sutton or Miles as to how the
unloading should be accomplished, that he never spoke to Miles at
all, and that he was surprised by and even disagreed with some of
the unloading methods Sutton used but nevertheless deferred to
2. This right-of-control test is most frequently used in the context
of determining whether an individual is an employee or an
independent contractor for purposes of the Workers’
Compensation Act, but the right-of-control concept is derived from
agency law. See Glover ex rel. Dyson v. Boy Scouts of Am.,
923 P.2d
1383, 1385 (Utah 1996).
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Sutton v. Miles
Sutton’s knowledge and skill because “he had no doubt in his mind
[that Sutton had] the abilities to . . . undertake [the] task.” Both
Miles and Sutton confirmed that they had no discussion with Jones
as to how the unloading was to be done. Furthermore, there
appears to have been no specific agreement as to whether Lowell
had the right to control Miles, and the evidence indicates that Miles
was not paid for his work and that he used his own equipment to
unload the rebar. This evidence raises genuine issues of fact as to
whether Lowell had the right to control the manner in which the
unloading of the rebar was to be accomplished. See Mallory, 2014
UT 27, ¶ 21. This factual dispute precludes summary judgment on
the question of whether Miles was an agent of Lowell.
II. Disputed Issues of Fact on Whether Miles Was Lowell’s
Employee
¶16 Sutton raises two arguments in contesting the trial court’s
determination that Miles was Lowell’s employee. First, he asserts
that the term “employee,” as used in the Release, is ambiguous and
that the ambiguity precludes summary judgment. See generally
R&R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068, 1074 (Utah
1997) (“[A] motion for summary judgment may not be granted if
a legal conclusion is reached that an ambiguity exists in the contract
and there is a factual issue as to what the parties intended.”
(citation and internal quotation marks omitted)). Second, he asserts
that even if “employee” is unambiguous, disputed issues of fact
should have precluded the trial court from determining, as a matter
of law, that Miles was Lowell’s employee.
A. The Term “Employee” Is Unambiguous.
¶17 Sutton asserts that the term “employee,” as used in the
Release, is both facially and latently ambiguous. We disagree with
both contentions.
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Sutton v. Miles
¶18 Contract language is facially ambiguous if it is “capable of
more than one reasonable interpretation because of uncertain
meanings of terms, missing terms, or other facial deficiencies.”
SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc.,
2001 UT 54, ¶ 14,
28 P.3d 669 (citation and internal quotation marks
omitted). Sutton argues that “employee” is facially ambiguous
because there are three possible reasonable interpretations of the
term: (1) someone who is paid for his work, (2) someone who
works pursuant to a contract for hire, and (3) someone over whom
the principal has the right of control.
¶19 We disagree with Sutton’s argument that there are three
different ways to interpret the Release’s use of the term
“employee.” An employee is “[a] person who works in the service
of another person (the employer) under an express or implied
contract of hire, under which the employer has the right to control
the details of work performance.” Black’s Law Dictionary 602 (9th
ed. 2009). Thus, Sutton’s separate “definitions” are actually all
factors that “should be considered in determining whether an
employer–employee relationship exists.” See Stamper v. Johnson,
2010 UT 26, ¶ 20,
232 P.3d 514 (identifying wages, contract of hire,
and right of control as elements of an employer–employee
relationship); see also Glover ex rel. Dyson v. Boy Scouts of Am.,
923
P.2d 1383, 1385–86 (Utah 1996) (identifying agreements between
the parties and method of payment as elements relevant to the
right-of-control analysis). We therefore determine that the term
“employee,” as used in the Release, is not facially ambiguous and
should be interpreted according to its general meaning.
¶20 Sutton further argues that there is latent ambiguity in the
Release’s use of the term “employee” because extrinsic evidence
suggests that the parties to the Release did not intend for it to
protect Miles. “A latent ambiguity is one which appear[s] only as
the result of extrinsic or collateral evidence showing that a word,
thought to have but one meaning, actually has two or more
meanings,” State v. Davis,
2011 UT App 74, ¶ 4,
272 P.3d 745
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Sutton v. Miles
(alteration in original) (citation and internal quotation marks
omitted), and appears only “in the exceptional case,” 32A C.J.S.
Evidence § 1514 (2008).
¶21 Sutton argues that Lowell’s attempt to apportion fault to
Miles, Lowell’s explicit mention of Jones but not Miles in the
Release, the fact that Sutton did not assert a vicarious liability claim
against Lowell, the fact that Miles was not discussed during the
Release’s negotiation, and Miles’s lack of involvement in the
negotiation indicate that the parties intended to exclude Miles from
the definition of employee. However, the fact that the parties may
not have anticipated that Miles would fall within the definition of
employee as used in the Release does not mean that they intended
employee to mean “any employee except for Miles.” We agree with
Miles that Sutton’s argument is simply an attempt “to use extrinsic
evidence to jump over the ambiguity portion of the analysis and
proceed directly to determining the parties’ intent with extrinsic
evidence.” Accordingly, we reject Sutton’s assertion that the term
“employee,” as used in the Release, contains a latent ambiguity.3
3. We do observe, however, that it does not appear that the parties
to the Release intended for Miles to be subject to the Release. Miles
asserted at oral argument that Sutton had the burden of explicitly
reserving his claims against Miles in the Release in order to avoid
having the release construed as releasing Miles. This position is
inconsistent with Utah law, which requires specificity regarding the
parties to be released and reverses the common law rule presuming
that a release of one tortfeasor releases all other tortfeasors as well.
See Utah Code Ann. § 78B-5-822 (LexisNexis 2012) (“A release
given by a person seeking recovery to one or more defendants does
not discharge any other defendant unless the release so provides.”);
Child v. Newsom, 892 P.2d 9, 11–12 (Utah 1995) (construing section
78B-5-822 to require “some degree of specificity” in describing the
defendants to be released and determining that boilerplate
language releasing “all other persons, firms and corporations” was
(continued...)
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Sutton v. Miles
B. Whether Miles Was Lowell’s Employee Cannot Be
Determined as a Matter of Law.
¶22 Nevertheless, we agree with Sutton that disputed issues of
fact preclude summary judgment on the question of whether Miles
was Lowell’s employee. The test for determining whether an
individual is an employee is derived from agency law and focuses
on the employer’s right to control the employee. Glover, 923 P.2d at
1385–86 (“[W]hether an employer–employee relationship exists
depends upon the employer’s right to control the employee.”
(citation and internal quotation marks omitted)). The factors
relevant to this right-of-control test are the same as those relevant
to the right-of-control element in the agency context. See supra ¶ 13.
As discussed, supra ¶¶ 13–15, disputed issues of fact exist with
respect to whether Lowell had the right to control the manner in
which Miles accomplished the unloading of the rebar. Thus, the
trial court erred by determining, as a matter of law, that Miles was
Lowell’s employee.
III. Alternative Argument that Miles Was a Representative or
Assign of Lowell
¶23 Miles asserts that even if we reverse the trial court’s
determination that he was an employee or agent of Lowell as a
matter of law, we should affirm the trial court’s summary
judgment ruling on alternative grounds, namely, that Miles was a
3. (...continued)
not sufficiently specific to effectuate a release (internal quotation
marks omitted)). Given that Miles was the primary tortfeasor, had
the parties intended to include him in the Release it is likely that he
would have been mentioned by name, particularly in light of the
fact that Jones was mentioned by name. Thus, if anything, the fact
that Miles was not mentioned by name favors Sutton’s position that
the parties intended to exclude him.
20130297-CA 10 2014 UT App 197
Sutton v. Miles
representative or assign of Lowell. We agree with Sutton that Miles
does not necessarily fall into either of these categories.
¶24 The ordinary meaning of the term “representative” is
“[o]ne who stands for or acts on behalf of another,” Black’s
Law Dictionary 1416 (9th ed. 2009), “especially through
delegated authority,” Merriam–Webster, http://www.merriamwebster.com/dictionary/representative (last visited July 23, 2014);
see also Black’s Law Dictionary 235 (explaining that one who acts in
a “representative capacity” often does so “through delegated
authority”). Generally, as Miles acknowledged in his memorandum
to the trial court, the terms “representative” and “agent” are used
synonymously. See Kenny v. George A. Fuller Co., 450 N.Y.S.2d 551,
557 (N.Y. App. Div. 1982) (indicating that the terms “agent” and
“representative” are “synonymous” (internal quotation marks
omitted)); Texas Power & Light Co. v. Adamson,
203 S.W.2d 275, 276
(Tex. Civ. App. 1947) (determining, in interpreting a Texas statute,
that “the terms ‘agency’ and ‘representative’ are interchangeable”);
Black’s Law Dictionary 1416 (referring the reader to the term “agent”
and cases falling under “Principal and Agent” headnotes in
defining “representative”); id. at 72 (defining “agent” as “a
representative”). Thus, for the same reason disputed issues of fact
exist as to whether Miles was Lowell’s agent, they also exist as to
whether he was Lowell’s representative.
¶25 The ordinary meaning of the term “assign” is “[o]ne to
whom property rights or powers are transferred by another.”
Black’s Law Dictionary 135–36. There are no facts, disputed or
otherwise, suggesting that Lowell transferred property rights to
Miles, and there is therefore no basis for determining that Miles
was an “assign” of Lowell.
¶26 Miles nevertheless urges us to adopt broader definitions of
the terms “representative” and “assign” that would permit us to
determine that he was a representative of Lowell because he
“serv[ed] Lowell in moving the rebar” and that he was an assign of
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Sutton v. Miles
Lowell because he was “assigned” the task of unloading the rebar.
Miles asserts that broad definitions are justified because the Release
was drafted so as to intentionally include anyone connected with
Lowell. This argument is similar to Sutton’s argument that the term
“employee” contains a latent ambiguity because of the parties’
intent in drafting the Release and is likewise without merit.
Therefore, we cannot affirm the trial court’s summary judgment
ruling on the alternative grounds suggested by Miles.
CONCLUSION
¶27 We determine that disputed issues of fact exist as to whether
Miles manifested an intent to act for Lowell and whether Lowell
had the right to control the manner in which Miles unloaded the
rebar. These disputed issues of fact should have precluded the trial
court from determining, as a matter of law, that Miles was Lowell’s
agent. We also determine that the terms employee, representative,
and assign are unambiguous; that disputed issues of fact preclude
summary judgment on the issues of whether Miles was Lowell’s
employee and whether he was Lowell’s representative; and that
Miles cannot be considered an assign of Lowell. We reverse the
trial court’s summary judgment ruling and remand for further
proceedings.
VOROS, Judge (concurring):
¶28 I concur with the majority opinion that the trial court erred
in granting summary judgment. However, in my view the
summary judgment should be reversed not because disputed issues
of fact exist as to Miles’s intent or Lowell’s control, but because the
Release does not as a matter of law identify Miles with the requisite
specificity.
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Sutton v. Miles
¶29 This appeal concerns the enforceability of a release. Under
the superseded common law rule, “a release of one tort-feasor also
released all other tort-feasors.” Child v. Newsom, 892 P.2d 9, 12
(Utah 1995). While Utah statutory law once followed this rule, our
current statute reverses it: “A release given by a person seeking
recovery to one or more defendants does not discharge any other
defendant unless the release so provides.” Utah Code Ann.
§ 78B-5-822 (LexisNexis 2008).
¶30 In Child v. Newsom our supreme court construed the phrase
“unless the release so provides.” 892 P.2d at 11–12. The Child case
arose from a traffic accident in which one car hit another. A
passenger in the latter car died. Her father brought wrongful-death
actions against both drivers. He settled the claim against one driver
and that driver’s insurance carrier. The release named that driver,
the insurance carrier, and all agents and employees of the
insurance carrier, “together with all other persons, firms and
corporations.” Id. at 9–10. The second driver moved for summary
judgment on the ground that, as a member of the class of “all other
persons, firms and corporations,” she too was released from
liability. Id. at 10.
¶31 That the second driver fell within the class of “all other
persons, firms and corporations” could hardly be disputed. Yet the
supreme court ruled that under the release statute, that release did
not cover her. Id. at 11–12. The court explained that because the
statute prescribes that a release given to one defendant does not
discharge any others “unless the release so provides,” Utah Code
Ann. § 78B-5-822, that phrase “must be construed narrowly as
requiring some degree of specificity,” Child,
892 P.2d at 11. The
court adopted the analysis reached by numerous other states with
similar or identical statutes that have “unequivocally held” that
general release language such as “all other persons, firms and
corporations” does not encompass “persons not specifically named,
described, or specifically identified therein.”
Id. at 12 (collecting
cases). Consequently, pursuant to the release statute, “a release
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Sutton v. Miles
must contain language either naming the defendant or identifying
the defendant with some degree of specificity in order to discharge
that defendant from liability.” Id.
¶32 The release before us fails this test as to Miles. The release
names Lowell Construction, Lowell’s construction superintendant
Don Jones, and its insurance carrier—described as “Releasees”
—together with “all of their agents, employees, representatives,
parent companies, insurers, subsidiaries, affiliates, related entities,
owners, successors, and assigns.” Miles, an employee of Byer
Excavating, was the principal tortfeasor, the person actually
handling the rebar that Sutton alleges fell on him—the person, in
short, who in Sutton’s view acted negligently. Yet the Release does
not name Miles. Given this omission, I cannot agree that the
Release identifies him with “some degree of specificity.”
Id.
¶33 Admittedly, the phrase “some degree of specificity” itself
lacks specificity. Presumably our supreme court incorporated
flexibility into the rule so that it could be adapted to the
circumstance presented. I believe the rule requires sufficient
specificity to demonstrate an actual intent to release the unnamed
defendant. Under this standard, the Release’s general reference to
Lowell Construction’s employees, agents, and assigns probably
does reflect an intent to release office workers at company
headquarters who had no involvement in the rebar incident. But a
generalized reference to Lowell’s agents, employees, assigns, and
so forth cannot, in my view, be reasonably read to reflect an intent
to release Miles. First of all, Sutton alleges that Miles personally
committed the tortious act. Parties intending to release the
principal tortfeasor would not likely identify him merely as an
employee, agent, or assign of Lowell—especially since no evidence
shows that Miles was on Lowell’s payroll, that he received
compensation from Lowell, that he considered himself a Lowell
employee on the day in question, or that he had a business
relationship of any description with Lowell before or after the
incident. A drafter actually intending to identify Miles with “some
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Sutton v. Miles
degree of specificity” would not name Jones but hope that Miles
fell within a generic category populated with Lowell employees
unrelated to the incident.
¶34 I do not disagree with the majority’s discussion of agents,
employees, representatives, and assigns. But in my view, even if
under a careful reading of Utah law Miles fit within one of these
categories, I would nevertheless hold as a matter of law that the
Release did not identify him with the specificity required by section
78B-5-822 and Child.
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