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848 P.2d 677

207 UtahAdv.Rep. 59

Smith v. Iversen

Utah Supreme Court

Decided March 3, 1993

Utah Supreme Court · decided 1993-03-03

Relies on Zions First National Bank, N.A. v. National American Title Insurance Co. · Bundy v. Century Equipment Co. · Bingham Ex Rel. Austin v. Lagoon Corp.

Good law ✅— No negative treatment on recordhow we know

Decided 1993-03-03

How this case has been cited

Cited by 14 later decisions — most recently February 2011

14 state decisions

70199320002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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ZIMMERMAN, Justice:

¶1Daniel B. Smith appeals from the lower court’s summary judgment against him on his personal injury claim against Monroe Iversen. The district court rejected Smith’s claim that Iversen, a co-employee, could be held personally liable to Smith for injuries inflicted when Iversen backed into him with a dump truck. Smith argues that the exclusive remedy provision of the Utah’s Workers’ Compensation Act, Utah Code Ann. § 35-1-60, does not preclude Iversen from being held liable to a fellow employee if Iversen is sued in his separate capacity as an owner and lessor of the dump truck he was operating at the time of the accident. For this argument, Smith relies on the so-called “dual capacity” doctrine. See, e.g., Stewart v. CMI Corp., 740 P.2d 1340, 1341-42 (Utah 1987) (per curiam); Bingham v. Lagoon Corp., 707 P.2d 678, 679-81 (Utah 1985).

¶2Based on our review of the record, we find that Smith’s “dual capacity” argument was not adequately framed in the pleadings nor adequately raised in his summary judgment motion and supporting memorandum. See, e.g., Bundy v. Century Equip. Co., 692 P.2d 754, 758 (Utah 1984); Valley Bank & Trust Co. v. Wilken, 668 P.2d 493, 494 (Utah 1983). Because it is fundamental that the trial court should have the first opportunity to address issues later raised on appeal, see Zions First Nat’l Bank v. National Am. Title Ins. Co., 749 P.2d 651, 657 (Utah 1988), we decline to consider Smith’s “dual capacity” argument. Consequently, we affirm.

HALL, C.J., HOWE, Associate C.J., and STEWART and DURHAM, JJ., concur.
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