author: PER CURIAM.

text:
    2002 UT 51
    STATE of Utah, Plaintiff and Appellee, v. Travis E. TELFORD, Defendant and Appellant.
    No. 20000654.
    Supreme Court of Utah.
    May 17, 2002.

      Mark L. Shurtleff, Att'y Gen., Jeffrey T. Colemere, Asst. Att'y Gen., Salt Lake City, for plaintiff.
    Travis E. Telford, pro se.
   PER CURIAM.

1 Defendant Travis E. Telford was con-viected of murder and received a sentence of five years to life. The Board of Pardons and Parole set his parole date in 2018. Telford petitioned for extraordinary relief. The district court denied the petition, the court of appeals affirmed, and this court declined to review the court of appeals' decision on cer-tiorari. See Telford v. Bd. of Pardons, 29 P.3d 1 (Utah 2001).

T2 Telford then moved for correction of his sentence under rule 22(e) of the Utah Rules of Criminal Procedure. The district court denied Telford's motion, and this appeal followed. Telford attacks the constitutionality of Utah's indeterminate sentencing scheme, section 77-184 of the Utah Code. He claims indeterminate sentencing "forces the sentencing judge ... to pass on his ultimate core judicial function of sentencing to the Utah State Board of Pardons and Parole," in violation of article V, section 1 of the Utah Constitution, the separation of powers clause. Telford also maintains indeterminate sentencing contravenes the Sixth and Eighth Amendments to the United States Constitution, and article I, sections 9 and 12 of the Utah Constitution. In particular, he maintains that because he was merely an accomplice to the murder, the State may not impose the same punishment on him as on his co-perpetrator or, for that matter, any other person who commits a crime classified as a first degree felony. Although his brief is not entirely clear on this issue, Telford appears to attack indeterminate sentencing on both per se and as applied grounds. We address his arguments as follows. I tC

T8 This court has already addressed and rejected the contention that Utah's indeterminate sentencing scheme violates the separation of powers clause. See Padilla v. Bd. of Pardons, 947 P.2d 664, 668-69 (Utah 1997). Telford has provided no basis for us to depart from our established precedent. We therefore reject his separation of powers argument.

14 To the extent Telford argues accomplice liability under section 76-2-202 of the Utah Code is a per se violation of the Eighth Amendment and article I, section 9 of the Utah Constitution, his contentions likewise fail. The accomplice liability provision requires the fact finder to determine that the accomplice had the same mental state as the person who directly committed the crime. See Utah Code Ann. § 76-2-202. Because the statute requires that accomplices bear a comparable degree of culpability to be convicted of the same level of offense, Telford's argument is meritless.

15 The balance of Telford's arguments are not properly raised under rule 22(e). The purpose of rule 22(e) is to allow correction of manifestly illegal sentences. As such, rule 22(e) claims are not restricted by time limits for bringing notice of appeal. Nor are they waived by failure to raise them at the first opportunity before 'the district court. "This makes. theoretical sense because an illegal sentence. is void and, like issues of jurisdiction, [may be raised] at any time." State v. Brooks, 908 P.2d 856, 860 (Utah 1995). For this reason, rule 22(e) claims must be narrowly cireumseribed to prevent abuse. See, eg., State v. Reyes, 2002 UT 13, 111 3-4, 40 P.3d 680, 6381-32.

16 With respect to the Sixth Amendment and article I, section 12 of the Utah Constitution, Telford has raised no articula-ble basis for attacking his sentence. These clauses pertain only to rights of accused persons prior to conviction. They do not create any distinct rights related to sentencing. Therefore, rule 22(e) cannot serve as a vehicle for raising an argument pursuant to those clauses.

17 Finally, to the extent Telford's Eighth Amendment and article I, section 9 arguments contest the constitutionality of accomplice liability as applied to his particular case, he impermissibly attempts to employ rule 22(e) to attack his underlying conviction. Telford's argument that he was not guilty of a first-degree-felony-level offense is nothing more than an attack on the district court's factual findings regarding his particular level of culpability. As explained in Brooks, a defendant may not employ rule 22(e) to attack the underlying conviction. 908 P.2d at 860; see also Reyes, 2002 UT 18 at 11 3-4, 40 P.3d at 681-32. Thus, the argument is not properly before us. <

T8 Because we find the preceding grounds dispositive, we need not address the State's argument that Telford's rule 22(e) motion was barred by res judicata. The district court's denial of Telford's rule 22(e) motion is affirmed.

      . For instance, rule 22(e) may be employed to correct a sentence under circumstances where the sentencing court had no jurisdiction, or to correct a sentence beyond the authorized statutory range. See State v. Babbel, 813 P.2d 86, 87 (Utah 1991).

      . The court of appeals has employed this doctrine to hold that arguments attacking the legality of a sentence that are raised on direct appeal or collateral attack may not be raised in a subsequent rule 22(e) motion. See State v. Clark, 913 P.2d 360, 362 (Utah Ct.App.1996).


source: Caselaw Access Project

author: DURRANT, Associate Chief Justice:

license: Public Domain

text:
    2002 UT 50
    UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY, Division of Environmental Response and Remediation; and Kent Gray, Executive Secretary of the Utah Solid and Hazardous Waste Board, Plaintiffs and Appellees, v. K. Brent REDD, Sherrill Jean Redd, Woody's Enterprises, Ltd., Bill C. Buhler, Marathon Oil Company and Shell Oil Company, Defendants and Appellants.
    Nos. 20010070, 20010105.
    Supreme Court of Utah.
    May 17, 2002.

      Mark L. Shurtleff, Att'y Gen., Paul M. McConkie, Asst. 'Att'y Gen., Salt Lake City, for plaintiff.
    Fred R. Silvester, Spencer Sicbhers, David W. Tundermann, J. Michael Bailey, Richard J. Angell, Salt Lake City, for defendants.
   DURRANT, Associate Chief Justice:

1 This interlocutory appeal concerns the statute of limitations period for a statutory cost recovery action based on the Underground Storage Tank Act ("USTA"). The defendants, Brent Redd ("Redd"), Woody's Enterprises, and Marathon Oil, filed two summary judgment -motions before the district court, contending that the State's recovery action was barred by the statute of limitations. The district court partially granted these motions, holding that the three-year statute of limitations period established in subsection 78-12-26(4) of the Utah Code barred the recovery of cleanup costs incurred by the State on or before September 15, 1995. The district court denied the defendants' summary judgment motions as to costs incurred by the State after that date, however. It reasoned that such costs fell within the applicable limitations period because the State accrued a cause of action each time it made a cleanup payment.

12 We conclude that the State's cost recovery action gcerued when (1) the State ordered the defendants to clean up the released petroleum, (2) the defendants refused to take corrective action, and (8) the State made a cleanup payment. We further conclude that the district court correctly held that the recovery of cleanup costs incurred by the State prior to September 16, 1995, was barred by the three-year statute of limitations period established in subsection 78-12-26(4) of the Utah Code. Finally, we affirm the district court's conclusion that costs incurred by the State between September 16, 1995, and September 16, 1998, were not barred by this limitations period.

BACKGROUND

18 Before we recite the facts, we note that in reviewing a denial of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See Estate Landscape & Snow Removal Specialists v. Mountain States Telephone & Telegraph Co., 844 P.2d 822, 324 n. 1 (Utah 1991). We state the facts accordingly.

~ T4 On June 28, 1991, six underground storage tanks were removed from a gas station located in Monticello, Utah. Soil tests conducted during the removal of these tanks revealed that petroleum had been released into the surrounding area. The discovery of this released petroleum was thereafter reported to the Utah Department of Environmental Quality, Division. of Environmental Response and Remediation ("the State") on July 29, 1991.

5 Subsequently, the State, actlng through the executive secretary of the Utah Solid and Hazardous Waste Control Board, ordered Woody's Enterprises, the entity that owned the Monticello property at the time the pill was discovered, to clean up the released petroleum. It then issued a comparable order to Redd, a previous owner of the property. Between 1991 and 1994, the State repeatedly demanded ~that Woody's Enterprises and Redd undertake abatement, investigative, and corrective action pursuant to the USTA. See Utah Code Ann. §§ 19-6401 to -429 (1999 & Supp.2001).

16 - Notwithstanding - these - requests, Woody's Enterprises and Redd took no remedial action. The State therefore initiated its own cleanup effort and began incurring costs sometime in early 1995 (March or April). The State continued to incur cleanup costs until "at least November 24, 1999."

T7 On September 16, 1998, the State filed an action against Redd, Woody's Enterprises, and Marathon Oil based on section 19-6-418 of the USTA. The State alleged in its complaint that the defendants had to pay both past and future cleanup costs related to the released petroleum because they were "responsible parties." In response, Redd, Woody's Enterprises, and Marathon Oil moved for summary judgment, arguing that the State's cost recovery action was barred by the three-year statute of limitations period established in subsection 78-12-26(4) of the Utah Code. In so doing, they alleged that the State's cost recovery action accrued in its entirety at the time the State first incurred a cleanup cost.

T8 The district court rejected the defendants' theory regarding the State's right to reimbursement for payments made pursuant to the USTA, however. Specifically, instead of holding that the State's cause of action acerued at one moment, it concluded that an indemnity cause of action accrued each time the State incurred a cleanup cost. Hence, the district court granted the defendants' summary. judgment motions with respect to costs incurred by the State on or before September 15, 1995, but found costs incurred by the State after that date were not barred by the applicable three-year limitations period.

19 We then granted the defendants' petition for an interlocutory appeal pursuant to rule 5 of the Utah Rules of Appellate Procedure. On appeal, Redd and Woody's Enterprises contend that the district court erred in only partially granting their summary judgment motion for two reasons. First, they claim that public policy prohibits interminable litigation. Second, they argue that the USTA provides the State with only one cause of action to recover both past and future cleanup costs.

{10 Marathon Oil contends that the district court erred in three respects. Like Redd and Woody's Enterprises, it claims that public policy prohibits the possibility of interminable litigation. Second, it contends that the applicable statute of limitations period was either triggered on the date the State first incurred cleanup costs (March or April 1995) or on the failure of Redd to clean up the site on March 18, 1998. Finally, it asserts that the State's claim against it was not an indemnity action but a subrogation action ~ with one accrual date.

{11 The State responds that its claims against the defendants constitute quasi-contract/indemnity actions, not tort actions, because it seeks reimbursement rather than damages. 'Relying on this reasoning, it argues that the three-year statute of limitations period established in subsection 78-12-26(4) of the Utah Code began to run each time it incurred a cleanup cost. The State further argues that Marathon Oil's subrogation argument is misplaced because the statutory provision on which it relies is inapplicable. The State also contends that policy considerations behind the USTA allow for multiple recovery actions. Lastly, the State insists that its position is consistent with other public coffer cases.

ANALYSIS

I. STANDARD OF REVIEW

112 Whether the district court correctly applied the appropriate statute of limitations period is a legal question, which we review for correctness. See Estes v. Tibbs, 1999 UT 52, 14, 979 P.2d 823; see also Taylor v. Am. Fire & Cas. Co., 925 P.2d 1279, 1281 (Utah Ct.App.1996) (declaring that whether the district "court correctly granted or denied a motion for summary judgment is a question of law" reviewed for correctness). Where this review requires us to examine statutory language, we look first to the plain meaning of the statute. State v. Ostler, 2001 UT 68, 17, 31 P.3d 528.

II. THE APPLICABLE STATUTE OF LIMITATIONS PERIOD

13 It is undisputed that subsection 78-12-26(4) of the Utah Code establishes the applicable statute of limitations period governing the State's action. Indeed, subsection 78-12-26(4) explicitly states that "[an action

may be brought within three years ... for a liability created by the statutes of this state," Utah Code Ann. § 78-12-26(4) (1999), and all the parties concede that the State's lawsuit was based on a liability arising out of a statute (Me., a cost recovery action brought pursuant to the USTA).

III. RUNNING OF THE STATUTE oF LIMITATIONS

1 14 Given that subsection 78-12-26(4) applies to the present action, we must now determine when the three-year statute of limitations period for such actions began to run. Redd, Woody's Enterprises, and Marathon Oil maintain that the State's lawsuit should be treated as a tort claim that accrued in its entirety when the State first incurred a cleanup cost (March or April 1995). They further claim that, since the State did not file its complaint until September 16, 1998, its suit was completely barred by the statute of limitations and that no cleanup costs could be recovered.

1 15 The State, reasoning that its claim is more analogous to a quasi-contract action, counters that the three-year statute of limitations period established in subsection 78-12-26(4) of the Utah Code began to run only when it made a cleanup payment. Put another way, the State asserts that, although the statute of limitations had run on costs it incurred prior to September 16, 1995, costs incurred after that date are not barred by the applicable limitations period. We accept neither the position proffered by the State nor the defendants; instead, we conclude that the plain language of sections 19-6-420 and 19-6-424.5 of the USTA demonstrates the applicable statute of limitations period for the State's cost recovery action began to run after three events had transpired. ©

T16 In feaching this conclusion, we first note that, under Utah law, statute of limitations periods are generally triggered when a plaintiffs cause of action accrues. Utah Code Ann. § 78-12-1 (1999); see also DOIT, Inc. v. Touche, Ross, & Co., 926 P.2d 885, 843 (Utah 1996). Indeed, section 78-12-1 of the Utah Code sets forth a default rule for all actions governed by chapter 78, declaring as follows: "[elivil actions may be commenced only within the periods prescribed in this chapter, after the cause of action has accrued, except in specific cases where a different limitation period is prescribed by statute." Utah Code Ann. $ 78-12-1 (1999) (emphasis added). The USTA does not set forth a statute of limitations period different than the one established in subsection 78-12-26(4) of the Utah Code, but is silent regarding the applicable statute of limitations period. See Utah Code Ann. §§ 19-6-401 to -429 (1999 & Supp.2001). The default rule of section 78-12-1 therefore applies and the statute of limitations period for the State's statutory recovery action is three years from the date its cause of action accrued. See Utah Code Ann. § 78-12-26(4) (1999).

1 17 The precise time that cause of action actually accrues under the USTA depends upon multiple events, however. In fact, the plain language of the USTA establishes that three events must occur before a cause of action accrues under its provisions. Subsection 19-6-424.5(1)(c) proclaims that "[alfter providing notice and opportunity for comment to responsible parties ... named under Section 19-6-420, the executive secretary may ... take action ... to recover costs from responsible parties, including costs of any investigation, abatement, or corrective action performed under this part." - Utah Code Ann. § 19-6-424.5(1)(c) (1999) (emphasis added). Additionally, section 19-6-420 states that "f the owner or operator fails to take ... corrective action ordered by the executive secretary, the executive secretary may ... recover costs from responsible parties equal to their proportionate share of liability...." Id. § 19-6-420(@)(b)iv) (emphasis added). Finally, subsection 19-6-424.5(9)(b) of the USTA provides that "i/f the executive secretary makes payments from the fund or state cleanup appropriation, he may recover the amount paid ...." Id. § 19-6-424.5(9)(b) (emphasis added). Accordingly, when viewed together, the plain language of subsections 19-6-424.5(1)(c), - 420(2)(b)(iv), and -424.5(9)(b) of the Utah Code demonstrates that no cause of action accrues under the USTA until (1) the State orders the owners or operators of an underground storage tank to remedy a petroleum spill, (2) the owners or operators fail to take corrective action, and (8) the State actually incurs a cleanup cost.

118 Assuming all three of these events have transpired, the State may file a statutory cost recovery action against the responsible parties to collect the cleanup costs it has incurred. If a defendant is found liable, the State is entitled to recover the costs it has incurred within three years of the filing of its complaint. Utah Code Ann. § 78-12-26(4) (1999). It may not recover future or estimated costs, however, because it lacks a viable cause of action for such costs until it actually incurs them. Utah Code Ann. § 19-6-424.5(9)(b) (1999).

IV. APPLICATION OF THE THREE YEAR STATUTE OF LIMITATIONS PERIOD

1 19 Applying the three-part test described above for determining the accrual date of a cause of action based on the USTA to the present case, we note that the State ordered Redd and Woody's Enterprises, as the owners of the Monticello property, to clean up the released petroleum. We further note that both owners failed to comply with this directive and that the State began incurring cleanup costs in early 1995, which continued until "at least November 24, 1999." Accordingly, the State first possessed a viable cause of action under the USTA in early 1995 and acquired new causes of action as it incurred additional cleanup costs.

T 20 While it had a viable cause of action as early as March or April 1995, the State's statutory cost recovery action against Redd, Woody's Enterprises, and Marathon Oil was not filed until September 16, 1998. Costs incurred on or before September 15, 1995, therefore fall outside the three-year statute of limitations period established in subsection 78-12-26(4) of the Utah Code. The district court thus correctly dismissed those costs by granting summary judgment in favor of the defendants.

21 Costs incurred by the State between September 16, 1995, and September 16, 1998, however, fall within the requisite statute of limitations period. As such, they are potentially recoverable. We therefore affirm the district court's conclusion that such costs are not barred by the applicable statute of limitations period. In reaching this conclusion, however, we note that whether Redd, Woody's Enterprises, and Marathon Oil are liable for such costs remains an unresolved issue. Consequently, the State's ability to recover these costs still depends upon the district court's future resolution of liability.

CONCLUSION

T22 We hold that the State acerued a cause of action when (1) it ordered Redd and Woody's Enterprises to remedy the released petroleum, (2) Redd and Woody's Enterprises refused to take corrective action, and (8) the State incurred a cleanup cost. We therefore affirm the district court's conclusion that recovery of cleanup costs incurred by the State prior to September 16, 1995, was barred by the applicable statute of limitations. We further affirm the district court's conclusion that costs incurred by the State between September 16, 1995, and September 16, 1998, fell within the applicable limitations period.

[ 23 Chief Justice DURHAM, Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Associate Chief Justice DURRANT'S opinion.

      . Redd owned the property at issue from January 23, 1984, to January 1, 1990. He then sold it to Woody's Enterprises, but later repurchased it on October 14, 1996, and became a co-owner with Sherrill Redd.

      . The State sued Marathon Oil because it was the corporate successor to Husky Oil, an entity which owned or operated the gas station at issue from February 26, 1971, to December 1, 1972, and from January 23, 1984, until March 6, 1984.

      . The State also sued Sherrill Redd, Bill Buhler, and Shell Oil Company. Those claims are not before us, however, for various reasons: (1) the State's action against Sherrill Redd was dismissed; (2) Bubler requested a stay pending settlement negotiations; and (3) Shell Oil Company entered into a consent decree with the State on May 14, 2001.

      . - As defined in the USTA, a
      '[rlesponsible party' means any person who[] is the owner or operator of a {acility[] owns or has legal or equitable title in a facility or an underground storage tank[] owned or had legal or equitable title in the facility at the time any petroleum was received or contained in the facility[,] operated or otherwise controlled activities at the facility at the time any petroleum was received or contained at the facility[,] or is an underground storage tank installation company.
      Utah Code Ann. § 19-6-402(26)(a) (1999).

      . We note that Marathon Oil contends in the alternative that the State's lawsuit was a subro-gation action.

      . We realize that the practical effect of the USTA creates the possibility of multiple recovery actions being filed by the State. This is not the same as allowing an individual lawsuit to go on in perpetuity, however, because once the State actually accrues a cause of action under the USTA, it only has three years in which to file a complaint. Thus, although multiple causes of action can arise, individual actions must be filed within a three-year window.
      Moreover, our decision to allow multiple recovery actions is supported by this Court's recent ruling in Department of Natural Resources v. Huntington Cleveland Irrigation Company, 2002 UT 75, 1124-27, - P3d --, 2002 WL 1750789]. In that case, we held that although multiple suits to recover for overassessments would be permiited, the statute of limitations began to run under subsection 78-12-26(4) each time Huntington denied voting rights to the Division of Wildlife Resources. Id. at TV 25-26.

      . With respect to costs incurred after September 16, 1998, we conclude that they had not yet accrued at the time the State filed its complaint. Whether they should be dismissed as premature, whether the State should be allowed to amend its complaint, or whether some other action is appropriate is a determination that we leave to the 'district court. We decline to answer this question because it was not argued below by the parties and has not been briefed or argued on appeal.


author: HOWE, Justice.

text:
    2002 UT 52
    C. Dean and Carol N. HERMANSEN, Richard and Carol Abelhouzen, Plaintiffs and Appellants, v. George N. TASULIS, an individual dba Interchange Real Estate, Tarena McDougal, Stanley R. McDougal, an individual dba Stan McDougal Construction, McDougal-Shaw Developers, a Utah limited liability company, Duane Shaw, an individual, Scott Claffey, an individual, Mansell & Associates, a Utah corporation, and John Does 1-25, Defendants and Appellees.
    No. 990851.
    Supreme Court of Utah.
    May 17, 2002.

      Lincoln W. Hobbs, Akiko Kawamura, Salt Lake City, for appellants.
    Roger R. Fairbanks, Salt Lake City, for appellees. ©
   HOWE, Justice.

INTRODUCTION

1 1 Plaintiffs, home owners, appeal from an order granting a motion for summary judgment to defendants, a real estate broker and his agent, who were involved in the sale of real estate to plaintiffs.

BACKGROUND

12 On May 2, 1994, plaintiffs C. Dean and Carol N. Hermansen entered into an earnest money sales agreement with Stanley MecDou-gal, a licensed contractor, to construct a home on lots located within the Wasatch Downs Subdivision which were owned by McDougal Shaw Development, LLC.

T8 Stanley McDougal is a part owner of McDougal Shaw Development. - Stanley's wife, Terena McDougal, is a licensed real estate agent who worked for George Tasulis, d.b.a. Interchange Real Estate, a licensed real estate broker. When the Hermansens executed the earnest money sales agreement, Tasulis and Terena were engaged by McDou-gal Shaw Development to act as listing broker and agent, respectively. The Herman-sens assert that in their conversations with Tasulis, he implied to- them that he was acting in their best interests and representing them in the real estate transaction.

{ 4 The Hermansens are the only plaintiffs who are parties to this appeal. Their claims against Stanley and Terena McDougal, as individuals, have been resolved in a partial settlement agreement. In this appeal, the Hermansens seek reversal of a summary judgment dismissing their claims against Ta-sulis. Terena remains a party to the suit only by virtue of her ageney relationship with Tasulis. . ,

T5 The Hermansens allege that at some point prior to April 30, 1994, Terena, Stanley, and Tasulis became aware, or through the exercise of reasonable diligence should have been aware, of significant problems with the stability of the soil and subsurface conditions at the subdivision. Surface water would accumulate in one area of the subdivision, and in preparing the property for development of residential construction; a backhoe was stuck for several days in a mud bog. They further assert that Stanley was also aware that the previous owner of the property kept livestock that occasionally would mire down in the mud and have to be pulled out by horses. Stanley installed a subdrainage system to prepare the property for construction. Despite the installation of the subdrainage system, the unstable soil conditions resulted in some parts of the Hermansens' home settling 3.75 inches, causing substantial structural damage.

16 Terena was a guarantor on the purchase of the property which became Wasatch Downs Subdivision. 'The record indicates that Terena and Tasulis occupied a trailer office located within the subdivision and that Tasulis was in the trailer the day a backhoe got stuck in what was described as "chocolate pudding-like mud." Deposition testimony revealed that it took two to three days of work with three to four pieces of heavy machinery to extricate the backhoe. The Hermansens assert that Tasulis and Terena knew that the lots purchased by the Hermansens were unsuitable for residential construction, but neither of them disclosed this information to the Hermansens. ,

T7 Stanley McDougal was questioned in deposition whether he had discussed his decision to purchase the subdivision property with his wife, Terena. He acknowledged that these conversations 'had taken place. However, on advice of counsel, Stanley asserted the spousal privilege and refused to answer questions about whether Terena and he discussed surface water that Stanley had observed on the property. Stanley's counsel indicated that he would advise Stanley not to answer any other questions respecting any conversation between Stanley and Terena relating to the existence or nonexistence of surface water within the subdivision. Stanley did, however, admit that Terena did not actively seek to sell real estate other than properties in which he had an ownership interest and that a significant portion of the real estate that Terena sold was real estate owned by him.

T8 The Hermansens assert that under Utah law, because real estate professionals hired by a vendor are expected to be honest, ethical, and competent, and are answerable at law for their statutory duty to the public, Tasulis and Terenag each breached that duty when they failed to disclose material defects in the property. The Hermansens further allege that Terena and Tasulis knew or should have known of the unstable condition of the soil at the subdivision upon which Stanley was building the Hermansens' future home and that Stanley, Terena, and Tasulis worked to fraudulently represent that the property was suitable for residential construction.

T9 The trial court dismissed plaintiffs' negligence claim against Tasulis and Terena based on its interpretation of American Towers Owners Ass'n v. CCI Mechanical, Inc., 980 P.2d 1182 (Utah 1996), which the trial court concluded precluded claims for economic loss arising from nonintentional torts. The court also dismissed plaintiffs' claim of fraud, finding insufficient evidence to support that claim. _ __ f

ANALYSIS

[10 We review the trial court's summary judgment for correctness, considering only whether the trial court correctly applied the law and correctly concluded that no disputed issues of material fact existed. Seq, eg., Surety Underwriters v. E & C Trucking, 2000 UT 71, ¶14, 10 P.3d 338. Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. When we review a grant of summary judgment, "we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party." <Id. at ¶15.

I. APPLICABILITY OF AMERICAN TOWERS

T11 The trial court relied heavily on American Towers in entering summary judgment for defendants on the Hermansens' claims of negligence and breach of fiduciary duty, applying the economic loss doctrine to bar these claims. 980 P.2d 1182, 1184 (Utah 1996). The plaintiff in American Towers sought damages for losses incurred as a result of alleged faulty design and construction in the plumbing and electrical systems of a large condominium complex. Id. The plaintiff, however, "was not a direct party to any of the construction contracts with defendants and ... there was no express language in the contracts establishing an intent to confer a special benefit on the [plaintiff]." Id. at 1187. Thus the success of the plaintiff's action in that case was dependent upon whether it was an intended third-party beneficiary.

112 As we noted in Oxzendine v. Overturf, "the predominant inquiry in any third-party beneficiary case is whether the contracting parties clearly intended the third party to receive a separate and distinct benefit from the contract." 1999 UT 4, ¶14, 973 P.2d 417 (citing Am. Towers, 9830 P.2d at 1188). In the present case, we are not faced with a third-party beneficiary scenario. Rather, the two remaining parties to this suit, the Hermansens and the real estate broker and his agent, dealt directly with one another. - Therefore, the issue becomes whether any duties or contractual relationship existed, the breach of which would entitle the Hermansens to a remedy.

II. ECONOMIC LOSS RULE

T13 The trial judge determined that the economic loss rule articulated in American Towers precluded suit against Tasulis and Terena for nonintentional torts. (In the recent case of SME Industries, Inc. v. Thompson, Ventulett & Associates, Inc., we traced the product liability roots of the economic loss rule articulated in American Towers, and reiterated its application to. limit certain types of claims, stating: __

«The economic loss rule is a judicially created doctrine that marks the fundamental boundary between contract law, which protects expectancy interests created through agreement between the parties, and tort law, which protects individuals and their property from physical harm by imposing a duty of reasonable care.

SME Indus., Inc., 2001 UT 54, 1 32, 28 P.8d 669 (citing Am. Towers, 980 P.2d at 1190). We also noted that although the economic loss rule has its roots in limiting damages in products liability cases where there is no physical injury, "the rationales underlying the doctrine are particularly applicable in the construction setting." SME Indus., Inc., 2001 UT 54 at ¶35, 28 P.8d 669. While not solely limited to a construction setting, we wrote that " '[clonstruction projects are characterized by detailed and comprehensive contracts that form the foundation of the industry's operations' " Id. (quoting Am. Towers, 930 P.2d at 1190). We also noted:

[Iln American Towers ... relief for defeated economic expectations under a design or construction contract was to come from the contract itself, not from third parties. We reasoned that to conclude © otherwise would essentially impose the plaintiffs' "economic expectations upon parties whom the [plaintiffs] did not know and with whom they did not deal and upon contracts to which they were not a party."

Id. (quoting Am. Towers, 980 P.2d at 1192) (alteration in the original) (citation omitted).

" 14 In the present case, the Hermansens assert that both Tasulis and Terena breached their duties to disclose potential problems with the property about which they knew or should have known. The Hermansens are not contending that they are owed a duty as third-party intended beneficiaries. They do not assert that Terena and Tasulis owed them duties arising from a contract to which they are not privy. We therefore distinguish the case at bar from American Towers and SME Industries as we are not faced with third-party beneficiaries or a suit by a buyer against a seller where all respective rights of the parties are negotiated and risk appropriately designated in a written instrument. The relationship at issue:is a direct relationship between buyers, a real estate broker, and his agent who allegedly failed to properly discharge their professional duties.

T15 The facts of American Towers, and two court of appeals cases that predate it, Maack v. Resource Design & Construction, Inc., 875 P.2d 570 (Utah Ct.App.1994), and Schafir v. Harrigan, 879 P.2d 1884 (Utah Ct.App.1994), all involved the purchase of completed residences. In those cases, plaintiffs sought economic damages resulting from faulty construction. In the instant case, the Hermansens purchased a lot and entered a contract for the construction of a home. They contend that the economic damages they seek relate to the manner in which, the real estate broker and his agent provided services to them and are, therefore, consistent with American Towers SME Industries Maack, and Schofir. Conversely, an opinion that economic losses cannot be recovered under any cireumstance runs afoul of previous precedent and, indeed, ignores the precedents relied upon in American Towers.

Colorado cases wherein the Supreme Court of Colorado adopted the economic loss rule,. but allowed causes of action to lie for breaches of duties arising outside of written contracts. Grynberg v. Agric. Tech, Inc., 10 P.3d 1267 (Colo.2000); Town of Alma v. Asco Constr., Inc., 10 P.3d 1256 (Colo.2000). Expressly adopting the economic loss rule, the Supreme Court of Colorado outlined the practical application and parameter of the rule, stating:

The proper focus in an analysis under the economic loss rule is on the source of the duties alleged to have been breached. Thus, our formulation of the economic loss rule is that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law.

Grynberg, 10 P.3d at 1269 (emphasis added).

T17 We expressly adopt this interpretation of the economic loss rule. Therefore, the initial inquiry in cases where the line between contract and tort blurs is whether a duty exists independent of any contractual obligations between the parties. When an independent duty exists, the economic loss rule does not bar a tort claim "because the claim is based on a recognized independent duty of care and thus does not fall within the scope of the rule." Town of Alma, 10 P.3d at 1268. We now turn to an analysis of whether defendants owed the Hermansens any independent duties.

III BREACH OF DUTIES AS A LICENSED REAL ESTATE PROFESSIONALS

{18 The Hermansens allege that Tasulis and Terena breached duties owed to them as licenced real estate professionals in not disclosing known material defects in the property. We discuss each alleged breach in turn.

T19 The Hermansens assert that as a licensed real estate broker, Tasulis owed them a duty to disclose known material defects in the soil condition at the subdivision. As discussed above, if Tasulis owed an independent duty to the Hermansens, American Towers does not bar the Hermansens claim.

120 In Secor v. Knight, we discussed the duties imposed upon real estate brokers to "deal fairly and honestly, despite the fact that the broker is acting primarily as the seller's agent." 716 P.2d 790, 795 n. 1 (Utah 1986) (citing Note, Real Estate Brokers' Duties to Prospective Purchasers, 1976 B.Y.U. L.Rev. 518, 514-15.) We cited with approval a California case that held that the purposes for imposing a duty to disclose accurate or complete information "are to protect the buyer from the unethical broker and seller and to insure that the buyer is provided sufficient accurate information to make an informed decision whether to purchase." Id. (citing Haston v. Strassburger, 152 Cal. App.3d 90, 199 Cal.Rptr. 388 (1984)). Because of the potential of substantial injury that could result from misplaced reliance on a broker, the Easton court held:

A real estate broker is a licensed person or entity who holds himself out to the public as having particular skills and knowledge in the real estate field. He is under a duty to disclose facts materially affecting the value or desirability of the property that are known to him....

Easton, 199 Cal.Rptr. at 387. We conclude that Tasulis owed an independent duty to the Hermansens to disclose facts materially affecting the value or the desirability of the property that were known to him. ©

121 Similarly, the Hermansens allege that although Terena was selling property for McDougal Shaw Development, she owed a duty as a licensed real estate agent to disclose known soil defects. Terena's Hability would flow to Tasulis as a result of the employer-employee relationship, which defendants have not challenged. In Christenson v. Commonwealth Land Title Co., 666 P.2d 302 (Utah 1983), we stated that although gratuitous advice from a stranger to a transaction cannot be actionable, when or if

"the information is given in the capacity of one in the business of supplying such information, that care and diligence should be exercised which is compatible with the particular business or profession involved. Those who deal with such persons do so because of the advantages which they expect to derive from this special competence. The law, therefore, may well predicate on such a relationship, the duty of care to insure the accuracy and validity of the information."

666 P.2d at 305 (quoting 1 F. Harper & F. James, The Law of Torts, § 7.6, at 546 (1956)).

122 Specific to the duties of a real estate agent to those persons to whom the agent owes no fiduciary duty, we stated in Dugan v. Jones that "(though not occupying a fiduciary relationship with prospective purchasers, a real estate agent hired by the vendor is expected to be honest, ethical, and competent and is answerable at law for his or her statutory duty to the public." 615 P.2d 12839, 1248 (Utah 1980). We apply this reasoning and hold that Terena as the real estate agent owed a duty, independent of any implied or express contracts, to be "honest, ethical, and competent" in her relationship with the Hermansens, although she and Ta-sulis were hired by the vendor. We agree with the assessment of the court of appeals in Schafir v. Harrigan when it stated:

Oftentimes, ... real estate agents and sellers are understandably unaware of latent defects in the home at the time of sale. This is an inherent risk involved in purchasing a home. Thus, the mere fact that the real estate agent has a duty to disclose known defects to potential purchasers does not mean that the [seller's] agent is Hable for all subsequent problems that come to light. . The purchasers must also demonstrate that the real estate agent misrepresented, or had prior knowledge of, defects in the home. Only when the purchaser can establish that the- agent had both the duty to disclose and knowledge of the defects is recovery appropriate. .

879 P.2d 1884, 1890 (Utah Ct.App.1994).

123 Accordingly, we do not impose upon real estate professionals a duty to conduct independent inspections of property they sell. However, when real estate professionals undertake to séeret known material defects, they breach their duty to be honest, ethical, and competent and are lable for their actions.

IV. FRAUD

$24 Under a general heading. of fraud, the Hermansens allege that the unstable nature of the soil and subsurface conditions of the lots upon. which their home was built, known to Tasulis and Terena, was not disclosed to them. Fraudulent nondisclosure encapsules the cause of action claimed by the Hermansens. To support a claim of fraudulent nondisclosure a plaintiff must prove the following three elements: (1) the nondis-closed information is material, (2) the nondis-closed information is known to the party failing to disclose, and (8) there is a legal duty to communicate. Mitchell v. Christensen, 2001 UT 80, 1 9, 31 P.8d 572.

25 In Mitchell, the plaintiffs alleged that at the time of their purchase of the defendants' home (1) a swimming pool on the property was leaking, (2) the defendants were aware of the leak, and (8) the defendants had a legal duty to disclose these de-feets prior to selling their property to the plaintiffs, which they failed to do. 2001 UT 80 at 14, 31 P.3d 572. The defendants defended that they had no duty to disclose defects under the doctrine of caveat emptor. Id. at T5, 31 P.3d 572. We held that sellers of real property owe a duty to disclose material known defects that cannot be discovered by a reasonable inspection by an ordinary prudent buyer. Id. at 112, 31 P.3d 572.

126 With this holding, we issued some specific precautions We first cautioned that "if a defect can be discovered by reasonable care, the doctrine of caveat emptor prevails and precludes recovery by the vendee." Id. at 111, 31 P.3d 572. We next instructed that an ordinary prudent buyer would not be required to "hire numerous expert home inspectors to search for hidden defects," but this does not mean that inspection by an expert will never be required. Id. at 1112-18, 31 P.3d 572. We concluded in Mitchell that the sellers had a legal duty to disclose the known leaks in their swimming pool prior to the sale of their property to the buyers because the leaks could not have been discovered by an ordinary prudent buyer. Id. at I 16, 31 P.8d 572.

127 Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to ahy material fact and that the moving party is entitled to judgment as a matter of law." Surety Underwriters, 2000 UT 71 at 114, 10 P.3d 388 (citations omitted). With this standard in mind, we review the elements of fraudulent nondisclosure.

28 First, we must determine whether the defective nature of the property was material. Second, we evaluate whether the nondis-closed information was known to the party failing to disclose. Third, we must decide whether there was a legal duty to communicate. Having already held that both Terena and Tasulis owed a duty to disclose any known defects, we address only the first two elements.

129 We must determine whether the defective condition of the property was material. We have held that materiality is " 'something which a buyer or seller of ordinary intelligence and prudence would think to be of some importance in determining whether to buy or sell" " Gohler v. Wood, 919 P.2d 561, 564 (Utah 1996) (quoting S & F Supply Co. v. Hunter, 527 P.2d 217, 221 (Utah 1974)). -It is clear to us that the defect in the property that caused substantial damage to the home, as occurred in this case, is a defect that a buyer or seller of ordinary intelligence and prudence "would think to be of some importance" in determining whether . to buy a home. Id.

130 The remaining issue is whether Terena and Tasulis knew of the material defect in the property. In support of their contention that Terena and Tasulis knew of the defect, the Hermansens assert that both of them worked out of a trailer on the subdivision. Tasulis knew of the subdrainage system. It is disputed whether he had actual knowledge of the unstable condition of the soil, but there is testimony that he heard statements regarding the backhoe being severely stuck in mud near where the Herman-sens' home would be built. We agree with the Hermansens that disputed facts sufficient to preclude summary judgment remain as to whether Tasulis did or did not know of the unstable condition of the soil.

$31 Terena was guarantor on the loan for the purchase of the property that was developed into the Wasatch Downs Subdivision. Her husband was aware of the backhoe becoming stuck and was also aware of livestock miring down in the area near the Hermansens' future home. Terena knew of the subdrainage system and occupied a trailer on the subdivision. We recognize that " '[blald statements do not suffice to establish a genuine issue of material fact" " Rawson v. Conover, 2001 UT 24, 138, 20 P.3d 876, 888 (quoting Dairy Prod. Servs., Inc. v. Wellsville, 2000 UT 81, T24, 13 P.3d 581 (quoting In re Smith, 925 P.2d 169, 174 (Utah 1996))). However, in responding to Terena and Tasulis motion for summary judgment, the Hermansens were required to "set forth specific facts showing that there [was] a genuine issue for trial." Utah R. Civ. P. 56(e); see also Rawson, 2001 UT 24, 1 33, 20 P.3d 876. The Hermansens contend that facts and inferences drawn in the light most favorable to them should preclude summary judgment for Terena. We agree and hold that sufficient facts, as discussed above, exist to preclude summary judgment for her.

V. SPOUSAL PRIVILEGE

132 The Hermansens assert that evidence supporting their claim of Terena's knowledge of the unstable condition of the soil at the subdivision could be obtained from testimony of communications between Tere-na and Stanley. Following advice from their counsel, Terena and Stanley refused to answer questions in their depositions regarding discussions they may have had about the soil conditions, asserting spousal privilege. The Hermansens argue that the privilege should not preclude discovery in this instance because the communication between Stanley and Terena was used to commit, plan to commit, or conceal a tort.

€ 33 Under Utah law, "neither a wife nor a husband may either during a marriage or afterwards be, without the consent of the other, examined as to any communication made by one to the other during the marriage." Utah Code Ann. § 78-24-8(1)(a) (1996). The privilege does not apply to (1) a civil action or proceeding by one spouse against the other, (2) a eriminal action or proceeding for a crime committed by one spouse against another, (8) the crime of deserting or neglecting to support a spouse or child, or (4) any civil or criminal proceeding for abuse or neglect committed against the child of either spouse. Id. § 78-24-8(1)(b)@®(Gv). Under the fifth exception, the privilege does not apply "if otherwise specifically provided by law." Id. § 78-24-8(v). The question then becomes whether there are any other laws which grant exceptions to spousal privilege.

134 The purpose of the communications privilege is, "to encourage marital confidences, which in turn promotes marital harmony." Utah R. Evid. 502, advisory committee note (2001). With respect to the privilege, the advisory committee on the Utah Rules of Evidence has noted:

More persuasive [is] ... the interest in securing an expectation of privacy pertaining to confidential communications between spouses. This expectation interest is based in part on whatever reliance married couples have placed on their understanding of existing marital privilege law. It is based well on the private nature of the marriage relationship.

Id. Furthermore, it has been said, "[The stress of modern society make more attractive than ever before the prospect of a safe harbor of intimacy where spouses can confide in each other freely without fear that what they say will be published under compulsion." Id. (quoting 2 J. Weinstein & M. Berger, Weinstein's Evidence 505-12 (1986)).

135 The Hermansens rely upon the exception found in rule 502(b)(4)(B) of the Utah Rules of Evidence, which states that the privilege does not exist "[als to any communication which was made in whole or in part, to enable or aid anyone (i) to commit, M) to plan to commit, or (iii) to conceal a crime or tort." Utah R. Evid. 502(b)(4)(B)G)- (). However, a simple allegation of claims sounding in tort does not render this exception applicable.

136 The advisory committee note to rule 502 recognizes that the exceptions to the rules are similar to those found in rule 28 of the 1971 Utah Rules of Evidence. Rule 28(2)(e)(1971), stated that the privilege is not applicable, "if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the communication was made, in whole-or in part, to enable or aid anyone to commit or: to plan to commit a tort." Utah R. Evid. 28(2)(e). This language gives guidance in determining when a tort exception to spousal privilege should apply. To preserve the purpose of the privilege, it cannot be found to be inapplicable simply because a party alleges a tort or erime. There must be sufficient evidence, independent of the communication, to support a finding that it was so made.

T37 In the instant case, the trial court determined that only speculation supported the Hermansens' claims against Tasulis and Terena. We now review the record to determine whether there was evidence, independent of any communication, to support a finding that communication from Stanley to Terena was made in whole or in part to enable or aid her to plan to commit or to conceal a tort. The Hermansens adduced evidence that Stanley saw a seep and surface water prior to his purchase of the subdivision property and subsequently installed a sub-drainage system. Terena and Tagsulis occupied a trailer on the subdivision during the construction project. The trailer was located at the site during the period -of time when a backhoe was stuck in the soil which had the consistency of "chocolate pudding." The Hermansens produced evidence that Tasulis and Terena were aware of the installation of a subdrainage system to remove ground water. A large percentage of the real estate sold by Terena was properties Stanley or his businesses owned. Terena was also a guarantor on the purchase of the property. A reasonable inference can properly be drawn that Terena would have inspected the property and made some inquiries about its suitability before becoming, a guarantor. See Surety Underwriters, 2001 UT at 115, 10 P.3d 338 ("[Wle view the facts and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party.") Both Stanley, as a developer of the property, and Terena, as the real estate agent, had a pecuniary interest in selling the property. We hold that this independent evidence is substantial and sufficient to warrant an exception to the spousal communication privilege. We realize the stringent nature of this exception and the importance of the policy enunciated above for the existence of the privilege. To the extent that their communications with respect to the Wasatch Downs Subdivision were shared for the purpose of aiding one another in planning, committing, or concealing tortious acts, they should not be privileged. We therefore hold that the facts stated above are sufficient to justify an exception to the privilege in this instance.

CONCLUSION

38 We reverse the trial court's order of summary judgment in favor of Tasulis and Terena. We remand the case for further proceedings consistent with this opinion.

39 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice RUSSON, and Justice WILKINS concur in Justice HOWE'S opinion.

      . Although the Hermansens indicate in their brief that Tasulis represented he was acting in the Hermansens' best interest, it is unclear whether they employed their own real estate agent.

      . A civil engineer deposed by the plaintiffs testified that it is normal for a home to settle up to one inch.

      . The Hermansens also allude to intentional misrepresentation, but this claim is undeveloped, and we therefore decline to address it.

      . We recognize that in the instant case the buyers were nol dealing directly with the sellers. This difference does not insulate a real estate agent from the tort of fraudulent nondisclosure because we have determined above that real estate agenis owe a duty to buyers to be honest, ethical, and competent.


author: ORME, Judge.

text:
    2002 UT App 149
    STATE of Utah, in the interest of C.C., T.C., D.S., and MM., persons under eighteen years of age. LK., Appellant, v. State of Utah, Appellee.
    No. 20001053-CA.
    Court of Appeals of Utah.
    May 9, 2002.

      Justin Gary Jensen, Draper, for Appellant.
    Mark L. Shurtleff, Attorney General, and John M. Peterson, Attorney General's Office, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before Judges BILLINGS, GREENWOOD, and ORME.
   OPINION .

ORME, Judge.

[ 1 Appellant LK. appeals a juvenile court order permanently terminating her parental rights. She argues that the juvenile court erred in denying her pro se motion for substitution of counsel and in failing to adequately explore the reasons behind her dissatisfaction with her attorney. The State contends that the court adequately inquired into her dissatisfaction, as required by State v. Pursifell, 746 P.2d 270 (Utah Ct.App.1987). We conclude the inquiry was insufficient and remand so the oversight can be cured.

FACTUAL BACKGROUND

T2 The State sought to terminate Appellant's parental rights. Due to her status as an indigent, Appellant was provided counsel as required by Utah Code Ann. § 78-3a-913(1)(a) (Supp.2001). Prior to trial, Appellant asked to address the court. Appellant then expressed a number of complaints to the court. For instance, she explained that she feared possible judicial bias resulting from the trial judge having presided over certain prior hearings.

' 3 Appellant also expressed dissatisfaction with the representation provided to her by her court-appointed attorney. She contended that her counsel failed to file an appeal she had requested and neglected to provide her with any understanding of "who ... or what [she] was trying to defend [herself] against." She further explained that she was not supplied with subpoenas for her witnesses until the Friday before trial and that, as a result, she was forced to try to "track down people" and deliver them over the weekend. Appellant concluded by making the court aware of her belief that, despite the seriousness of the potential consequences that confronted her, she was not being provided high caliber representation. After hearing Appellant's complaints, her counsel, acknowledging that her concerns focused on his performance, moved to withdraw.

T4 In response, the juvenile court asked Appellant whether she had met with her lawyer. Appellant answered that she had met with him the Thursday and Friday before trial. The court then briefly addressed Appellant's concerns about the court's neutrality and reassured her that she had "a competent attorney to represent [her]" and that her attorney "[was] a good attorney that [could] help [her] with [her] case." Without making further inquiry into Appellant's complaints about her attorney, the juvenile court denied the attorney's motion to withdraw and required the parties to proceed with trial. Following trial, the juvenile court issued an order permanently terminating Appellant's parental rights. .

ISSUE PRESERVATION

T5 The State initially questions whether Appellant's complaints should be construed as a request for the appointment of substitute counsel. The State argues that, due to the lack of specificity in Appellant's complaints to the juvenile court, she failed to effectively preserve this argument for appeal. Viewed in isolation, the complaints made by Appellant are admittedly somewhat ambiguous and could perhaps be construed as a request for a continuance or a suggestion for recusal rather than a request for substitution of counsel. Clearly, however, those in attendance viewed the complaints, in context, as tantamount to requesting appointment of a different attorney. Thus, on the heels of her complaint, Appellant's attorney sought to withdraw. The juvenile court addressed the situation by reassuring Appellant that she was represented by good counsel and informing her that her counsel would do a good job for her and would continue to represent her. Therefore, we conclude Appellant's comments were clearly understood to include a request for new counsel and that the issue was preserved for appeal. Indeed, it is the only issue raised.on appeal. _ _ -

JUVENILE COURTS DUTY TO INQUIRE -

16 In State v. Pursifell, 746 P.2d 270 (Utah Ct.App.1987), this court addressed whether Due Process and the Sixth Amendment impose a duty on trial courts to inquire into an indigent criminal defendant's expressed dissatisfaction with his or her court-appointed counsel. In that case, we reached the following conclusion:

While an indigent defendant has a right to have counsel appointed to represent him, he does not have a constitutional right to. a lawyer other than the one appointed, absent good cause. Whether to appoint a different lawyer for an indigent defendant who expresses dissatisfaction with his court-appointed counsel, but who has no constitutional right to appointment of a different attorney, is a matter committed to the sound discretion of the trial court and will be reversed only for an abuse of discretion.
However, when dissatisfaction is expressed, the court must make some reasonable, non-suggestive efforts to determine. the nature of the defendant's complaints and to apprise itself of the facts necessary to determine whether the deferdant's relationship with his or her appointed attorney has deteriorated to the point that sound discretion requires substitution ....

Id. at 272-78 (citations omitted).

17 We must now determine whether the same standard applies in termination of parental rights proceedings in juvenile court. In making this determination, we recognize that this court has declined the invitation to extend to parents in juvenile court termination proceedings the full panoply of rights and safeguards provided defendants in criminal trials. See, eg., In re A.E., 2001 UT App 202,1% 11-12, 29 P.3d 31" (explaining that less strict method of ensuring validity of waiver of statutory right to counsel applies in juvenile court termination proceedings). However, we have left no doubt that indigent parents facing the permanent deprivation of their parental rights are entitled not only to an appointed attorney, but to the effective assistance of counsel. See In re K.H., 880 P.2d 11, 18 (Utah Ct.App.) (adopting the same test used in criminal cases to decide a claim of ineffective assistance in a juvenile court proceeding), cert. denied, 890 P.2d 1034 (Utah 1994). f

T8 Utah, like many other states, has elected to provide statutorily for the appointment of counsel in termination cases. See Utah Code Ann. § 78-8a-918(1)(a) (Supp.2001); In re AF., 2001 UT App 202 at 1 10, 29 P.8d 31; In re EH., 880 P.2d at 18. The Utah statute mandates that, in juvenile court proceedings,

[tlhe parents, guardian, custodian, and the minor, if competent, shall be informed that they have the right to be represented by counsel at every stage of the proceedings.... [If any of them requests an attorney and is found by the court to be indigent, counsel shall be appointed by the court.

Utah Code Ann. § 78-8a2-918(1)(a) (Supp. 2001).

19 We have interpreted section 78-3a-913(1)(a) as requiring that the counsel appointed to represent parents must provide effective assistance, because construing the statute any other way would render it "meaningless or illusory." In re E.H., 880 P.2d at 13. An integral part of the right to the effective assistance of counsel is the opportunity to have substitute counsel appointed when necessary and, to that end, to have the court explore a party's complaints regarding the assistance his or her attorney has provided to determine if substitute counsel is indeed necessary. As we explained in Pursifell, exploring the validity of these complaints is necessary because when an indigent party "is forced to stand trial 'with the assistance of an attorney with whom he has become embroiled in an irreconcilable conflict," he is deprived of the 'effective assistance of any counsel whatsoever' and his ... right to counsel is violated." 746 P.2d at 274 (quoting Brown v. Craven, 424 F.2d 1166, 1170 (0th Cir.1970)). In failing to fully investigate a parent's expressed discontent, a court risks denying that parent his or her right to adequate representation. Our concern over the possible denial of this right is not somehow alleviated when the origin of the right is statutory rather than constitutional.

110 Accordingly, we hold that for the statutorily-provided right to counsel in termination proceedings to be meaningful, juvenile courts, like their district court counterparts in eriminal eases, must explore whether there is any validity to an indigent parent's expressed complaints and determine whether the parent's "relationship with his or her appointed attorney has deteriorated to the point that sound discretion requires substitution or even to such an extent that his or her ... right to counsel would be violated but for substitution." Id. at 278. This must be done "(elven when the [juvenile court] judge suspects that the [party]'s requests are disingenuous and designed solely to manipulate the judicial process. and delay the trial." Id.

FAILURE TO INQUIRE

T11 We must now determine whether the juvenile court in this case failed to satisfy its duty to inquire. While the juvenile court did make some effort to discern whether Appellant had the opportunity to meet with counsel, this was not enough to discharge its obligations under Pursifell. See id.

112 Even when presented with the fact that appointed counsel found it necessary to ask to withdraw, the court did not adequately inquire regarding the adequacy of counsel's representation and the state of the attorney-client relationship between counsel and Appellant. See id. Having neglected to do so, there simply was no way the juvenile court could determine whether substitution was necessary. Where dissatisfaction with court-appointed counsel has been expressed, juvenile courts must at least inquire into the " 'specific way' in which [the party's] interests [have] not been represented." Id.

REMEDY

T18 "[A] trial court's failure to investigate a ... timely substitution request [made by an indigent party with appointed counsel] is per se error." State v. Vessey, 967 P.2d 960, 962 (Utah Ct.App.1998). It is possible to conclude, in appropriate cases, that such an error was harmless. See, e.g., State v. Valencia, 2001 UT App 159,1 14, 27 P.8d 578 (holding failure to inquire was harmless where record was "sufficient to support the trial court's determination that good cause did not exist for substitute counsel"). However, the court's failure to sufficiently explore Appellant's complaints in this case leaves us without the information needed to evaluate whether she was entitled to substitute counsel either as a matter of sound discretion or as a matter of law.

{14 Under these cireumstances, the only appropriate remedy is to remand so that the juvenile court can "hold an evidentiary hearing to determine if [Appellant's] complaints about [her] appointed counsel justified the appointment of substitute counsel. If so, the trial court should grant [Appellant] a new trial However, if the court determines [Appellant's] request for substitution of counsel was unfounded, the judgment ... would stand as entered." Vessey, 967 P.2d at 964. The court's determination on remand should be governed by the "good cause" standard recognized in prior cases. Good cause exists for providing substitute counsel whenever the court uncovers a " 'conflict of interest, a complete breakdown in communication[,] or an irreconcilable conflict which leads to an apparent unjust verdict.'" State v. Lovell, 1999 UT 40,131, 984 P.2d 382 (quoting Umited States v. Young, 482 F.2d 993, 995 (5th Cir.1978)), cert. denied, 528 U.S. 1083, 120 S.Ct. 806 (2000). >

CONCLUSION

"[ 15 As a parent facing the potential termination of her parental rights, Appellant was entitled to the effective assistance of counsel. In order to ensure that Appellant received such assistance, the juvenile court was obligated to explore her expressed dissatisfaction with the representation she was receiving. , Having failed to do so, the: juvenile court erred. We now remand for an appropriate hearing so,. that this oversight can be rectified.

16 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . Appellant's attorney responded to, her complaints with the following: "Your Honor, I-hearing my client, I'm not going to address her concerns concerning myself, but I believe that she doesn't want me as an attorney and has made that very clear today and because of that, I would ask to withdraw."

      . As we have previously noted, "[al good overall reputation ... is no guaranty even an excellent attorney, especially a very busy one, has not botched a partictﬂér case." State v. Pursifell, 746 P.2d 270, 273 n. 1 (Utah Ct.App.1987).

      . In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the United States Supreme Court acknowledged that in some cases Due Process will require that parents be provided counsel in termination cases, regardless of whether the jurisdiction has provided for the appointment of counsel statutorily. See id. at 31-32, 101 S.Ct. at 2162.

      . At the time of our decision in In re E.H., the principle now embodied in Utah Code Ann. § 78-3a-913 was codified as Utah Code Ann. § 78-3a-35(2)(a) (1992).

      . Of course, the judge's suspicion may be entirely well-founded. When it is, the required inquiry should readily establish the facts substantiating . the suspicion and warranting the denial of a change of counsel.


author: THORNE, Judge:

text:
    2002 UT App 166
    STATE of Utah, Plaintiff and Appellee, v. Elvira D. QUINTANA, Defendant and Appellant.
    No. 20000898-CA.
    Court of Appeals of Utah.
    May 16, 2002.

      Dale M. Dorius and Justin C. Bond, Brigham City, for Appellant.
    Mark L. Shurtleff, Attorney General, Kris C. Leonard, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BILLINGS, BENCH, and THORNE.
   OPINION

THORNE, Judge:

T1 Elvira Quintana (Quintana) appeals from an order denying her motion to compel the State to honor the terms of a plea agreement. We reverse.

BACKGROUND

T2 Quintana was charged with Theft, a third degree felony, in violation of Utah Code Ann. § 76-6-404 (1999). Prior to her preliminary hearing, Quintana's counsel entered into a plea agreement with the prosecutor. The essence of the agreement was that Quin-tana would plead guilty to one count of theft if the prosecutor agreed to support Quinta-na's double 402 motion. The parties did not reduce the specific terms of the agreement to writing.

T3 At Quintana's pretrial conference, the prosecutor notified the trial court that the parties had reached a plea agreement. The prosecutor informed the court:

Prosecutor: We have it resolved. I believe [defense] counsel has the notes, though, of the resolution. Perhaps he can recite that.
Defense Counsel: [Quintana] [willl plead to one count of theft, a third degree felony. If she pays her restitution within six months the State would give her a double 402 motion.

(Emphasis added.)

4 Following this exchange, the trial court questioned Quintana about the willingness of her plea. |

The Trial Court: Have there been any promises made to you in exchange for your guilty plea other than those things I've been told?
Quintana: No.
The Trial Court: Do you understand that I haven't made any agreement as to what your sentence will be, is that clear? Quintana: Uh-huh.

Following additional questioning by the trial court, Quintana pleaded guilty to one count of theft.

T5 Quintana paid the restitution ordered by the trial court within six months, and then filed a double 402 motion seeking a double reduction in the degree of the theft charge to which she had pleaded guilty. In that motion, Quintana argued that she had completed the terms of the plea agreement. The State opposed the motion, arguing that Quin-tana had not completed the terms of the plea agreement because she had yet to successfully complete her probation.

T 6 The trial court denied the motion, concluding that Quintana "must successfully complete probation prior to the Court granting such a Motion." Quintana subsequently filed a motion to compel, arguing that she had completed the terms of the plea agreement and that "the State ... hald] clearly not performed under the terms of the plea agreement" by opposing the double 402 motion. The State also opposed the motion to compel. The trial court denied the motion explaining:. __ .

The Court is of the opinion that its previous Decision, dated September 21st, is not ambiguous. Even if the defendant's contention that the State agreed to recommend a double 402 motion within six months, were found to be true, the Court is not bound by such a recommendation.

Quintana appeals.

ISSUE AND STANDARD OF REVIEW

T7 Quintana argues the trial court erred by denying her Motion to Compel Settlement Agreement. . "We review the trial court's denial of the motion to compel under an abuse of discretion standard." Pack v. Case, 2001 UT App 232,%°16, 30 P.3d 486.

ANALYSIS

T8 Quintana argues that she fulfilled the terms of the plea agreement by paying the court-ordered restitution within six months, and therefore, the trial court erred by not compelling the State to fulfill its promise to recommend that the trial court grant her double 402 motion. The State, however, argues that the terms of the plea agreement also required her to complete probation before the State would support her motion.

T9 The terms of the plea agreement were not reduced to writing by the parties. Indeed, the record reveals that the only me-morialization of the plea agreement occurred during the plea when Quintana and the prosecutor agreed that "if she pays her restitution within six months the [S]tate would give her a double 402 motion." Accordingly, we conclude that the State's promise was contingent only upon Quintana paying the restitution within six months. Quintana upheld her end of the bargain.

110 In State v. Garfield, 552 P.2d 129 (Utah 1976), the Utah Supreme Court discussed the remedy afforded a defendant who was denied "the benefit of his bargain, viz., a personal recommendation [from the State] to the court, for probation." Id. at 130. In Garfield, the State "unequivocally" promised "to recommend probation for the defendant" in exchange for his guilty plea. Id. Neither the judge who received the defendant's guilty plea nor the prosecutor who entered into the agreement with the defendant were present at sentencing. See id. The prosecutor present at sentencing made no recommendation to the frial court regarding probation, and the trial court sentenced the defendant to prison. See id.

11 In response, the defendant moved to set aside his guilty plea. See id. The trial court denied the defendant's motion. See id. On appeal, the supreme court affirmed the trial court's decision denying the defendant's motion to set aside his plea; however, that did not end the court's analysis. See id. The court remanded the case for a "limited evidentiary hearing" to determine if the "sentencing judge w[as] informed of the prosecutor's recommendation." Id. at 181. If not, the court explained that "[the] defendant is entitled to have his sentence set aside and to be resentenced with the benefit of his bargain, viz., a personal recommendation to the court, for probation, by the prosecutor." Id. at 180.

12 In the present matter, the record establishes that Quintana and the State agreed that if Quintana paid the restitution within six months, the State would support her double 402 motion. Quintana upheld her part of the bargain and therefore is entitled to the "benefit of h[er] bargain, viz., [the State's] recommendation to the court," supporting her double 402 motion. Id.

CONCLUSION

113 We reverse the trial court's order denying Quintana's Motion to Compel Settlement Agreement. We remand to the trial court with instructions to compel the State to honor the terms of its agreement with Quin-tana. Following the State's recommendation supporting Quintana's double 402 motion, the trial court is within its sound discretion to either grant or deny Quintana's double 402 motion.

1 14 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and RUSSELL W. BENCH, Judge.

      . - See Utah Code Ann. § 76-3-402 (1999) (allowing the trial court to either "enter a judgment of conviction for the next lower degree of offense and impose sentence accordingly," or a two degree reduction if the prosecutor "specifically agrees in writing or on the court record").

      . The State argues that "[this position is supported by the presentence/probation referral form completed by the clerk following the change of plea hearing ..., the trial court's ruling on the motion for double 402 reduction ..., and documentation [an unsigned handwritten note] supporting the State's objection to defendant's motion to compel performance of the agreement." However, these documents do not evidence that Quintana expressly and unequivo- "~ cally agreed to that term, and therefore, offer no assistance to this court in attempting to decipher the terms of the plea agreement.


text:
    2002 UT App 164
    INTERMOUNTAIN SLURRY SEAL and/or CNA Insurance, Petitioner, v. LABOR COMMISSION and Kyle Stephens, Respondents.
    No. 20010271-CA.
    Court of Appeals of Utah.
    May 16, 2002.

      Robert C. Olsen and Theodore E. Kanell, Plant Wallace Christensen & Kanell, Salt Lake City, for Petitioner.
    Daniel F. Bertch, Kevin K. Robson, Bertch Robson, Alan Hennebold,; Labor Commission, Salt Lake City, and Jan P. Malmberg, Paul J. Whelan, Perry Malmberg & Perry, Logan, for Respondents.
    Before JACKSON, P.J., and. GREENWOOD, and THORNE, JJ.
   OPINION :

THORNE, Judge:

T1 Intermountain Slurry Seal and CNA Insurance (Employer) appeal from an order of the Labor Commission (the Comrmssmn) concluding that injuries qualifying for workers' compensation benefits under Utah Code Ann. § 34A-2-413(10) (2001) are not subject to the suspension of benefits provision found in section 34AA-2-413(7) We affirm,

BACKGROUND

11’2l0r‘1 September 8, 1999, while working for Intermountain Slurry, Seal, Kyle Stephens was involved in an accident with a heavy equipment roller that crushed both of his legs below the knee, resulting in a double amputation. After the accident, Employer voluntarily paid disability benefits to Stephens. Employer also volunteered to pay for Stephens's return to school for vocational training, an offer that Stephens readily accepted. Approximately one year after the accident, Employer offered Stephens two different jobs that Employer had decided Stephens was capable of performing. The first job would have required Stephens to perform general telephone work, the second position would have required Stephens to work a company dispatcher. Stephens, however, for a variety of reasons, declined these offers, and, on July 8, 1999, he filed an application for hearing with the Commission seeking workers' compensation benefits.

T3 Following two hearings on Stephens's application, the Administrative Law Judge (ALJ) overseeing the hearing found that Stephens's injuries qualified him for total permanent disability benefits pursuant to section 34A-2-413(10). - Employer requested that the Commission review the ALJ's conclusion. The Commission accepted the request, and subsequently affirmed the ALJ's ruling. Employer now appeals.

ISSUE AND STANDARD OF REVIEW

14 Employer argues that the Commission improperly interpreted Utah Code Ann. § 34A-2-4183(10) to exclude the modifying elements found in section 34A-2-418(7). Employer's argument presents a question of law, which we review for correctness. See, e.9., Esquivel v. Labor Comm'n, 2000 UT 66, 13, 7 P.3d 777. When reviewing a question of law, we give "no deference to the trial judge's or agency's determination, because the appellate court has 'the power and duty to say what the law is and to ensure that it is uniform - throughout the - jurisdiction." Drake v. Industrial Comm'n, 989 P.2d 177, 181 (Utah 1997) (citation omitted); see also Employers' - Reinsurance. v. - Industrial Comm'n, 856 P.2d 648, 650 (Utah Ct.App. 1998).

ANALYSIS

T5 Employer argues that the Commission erred in interpreting subsection 34A-2-413(10) as immunizing benefits awarded pursuant to that subsection from the modification provisions articulated in section 34A-2-413(7).

16 The Commission, on the other hand, urges an alternative view, arguing that the plain language of the statute highlights the legislature's intent to treat workplace injuries resulting in the loss, or loss of use, of certain listed body members differently from other injuries that also result in a finding of permanent total disability.

In construing a statute, our aim is to give effect to the legislature's intent in light of the purpose the statute was meant to achieve. When doubt or uncertainty exists as to the meaning or application of an act's provisions, an analysis of the act in its entirety should be undertaken and its provisions harmonized in accordance with the legislative intent and purpose. One of the cardinal principles of. statutory construction is that the courts will look to the reason, spirit, and sense of the legislation, as indicated by the entire context and subject matter of the statute dealing with the subject. Further, we have a duty to construe a statute whenever possible so as to effectuate legislative intent and avoid and/or save it from constitutional conflicts or infirmities.

In re Marriage of Gonzalez, 2000 UT 28, $23, 1 P.3d 1074 (citations and quotations omitted). "We therefore look first to the plain language of section" 34A-2-418." Esquivel, 2000 UT 66 at T21, 7 P.3d T77. "[Oluly if there is ambiguity do we look beyond the plain language to legislative history or policy considerations." Vigos v. Mountainland Builders, Inc., 2000 UT 2, 13, 993 P.2d 207. Finally, in the context of workers' compensation, we must construe the statute " Hberally in favor of finding employee coverage."" Id. (citation omitted).

T7 Utah Code Ann. § 84A-2-418, titled "Permanent Total Disability-Amount of Payments-Rehabilitations" (the Act), provides that "[in cases of permanent total disability resulting from an industrial accident or: occupational disease, the employee shall receive compensation as outlined in this seetion." Id. § 34A-2-418(1)(a). The Act then describes the first of two avenues available for an employee to demonstrate the existence of a permanent, totally disabling condition. See id. § 34A-2-418(1)(a)-(d). Under this first provision, the claimant/employee bears the burden of proof to show that OC

(1) the employee sustained a significant impairment or combination of impairments as a result of the industrial accident or occupational disease that gives rise to the permanent total disability entitlement;
(i) the employee is permanently totally disabled; and
(Hi) the industrial accident or occupational disease was the direct cause of the employee's permanent total disability.

Id. § 34A-2-418(1)(b)@)-(iii). The Act also requires the Commission, prior to awarding permanent total disability benefits under subsection (1), to find that

(1) the employee is not gainfully employed;
(i) the employee has an impairment or combination of impairments that limit the employee's ability to do basic work activities;
(i) the industrial or occupationally caused impairment or combination of impairments prevent the employee from performing the essential functions of the work activities for which the employee has been qualified until the time of the industrial accident or occupational disease that is the basis for the employee's permanent total disability claim; and
(iv) the employee cannot perform other work reasonably available, taking into consideration the employee's age, education, past work experience, medical capacity, and residual functional capacity.

Id. §

T8 Moreover, the Act further limits the finality of a finding of permanent total disability pursuant to subsection (1) until:

() an administrative law judge reviews a summary of reemployment activities undertaken pursuant to Chapter 8, Utah Injured Worker Reemployment Act;
(ii) the employer or its insurance carrier submits to the administrative law judge a reemployment plan as prepared by a qualified rehabilitation provider reasonably designed to return the employee to gainful employment or the employer or its insurance carrier provides the administrative law judge notice that the employer or its insurance carrier will not submit a plan; and
(Hi) the administrative law judge, after notice to the parties, holds a hearing, unless otherwise stipulated, to consider evidence regarding rehabilitation and to review any reemployment plan submitted by the employer or its insurance carrier under Subsection

Id. § 34A-2-418(6)(@)@)-G@i). There is no dispute that Stephensg's injury was not subject to this involved inquiry. Rather, all parties admit that his injuries fall squarely under subsection (10) of the Act.

T 9 Subsection (10) establishes that

(a) The loss or permanent and complete loss of the use of both hands, both arms, both feet, both legs, both eyes, or any combination of two such body members constitutes total and permanent disability, to be compensated according to this section.
(b) A finding of permanent total disability pursuant to Subsection (10)(a) is final.

Id. § 34A-2-418(10)(a)-(b). Accordingly, if an employee suffers one of the combination of injuries articulated in subsection (10), there is a conclusive presumption that the employee is permanently and totally disabled.

10 Employer, however, argues that contrary to the Commission's interpretation, a disability finding under subsection (10) is subject to the same rehabilitation provisions as a disability finding under subsection (1). We disagree.

{11 Our reading of the plain language of subsection (10) evidences a clear intent to separate the injuries enumerated under subsection (10) from other injuries that may also result in an award of permanent total disability benefits. The qualifying process under subsection (10) is much simpler and fully insulates the affected employee from the requirements of either subsection (1) or subsection (6). Specifically, to qualify ' for permanent total disability benefits under subsection (10), an employee need show nothing more than the existence of an injury listed within subsection (10) and that the injury was the result of an industrial accident. See id. § 34A-2-418(10)(a). Therefore, an employee claiming benefits under subsection (10) is not required to establish that he is totally disabled as all other claimants are required to do pursuant to section 34A-2-413(1)(b)(ii); see also section 34A-2-413(11)(a).

112 A subsection (10) claimant is also immunized from any possible adverse affect that might otherwise arise from the Commission's duty to make specific findings pursuant to subsection (1). See id. § 34A-2-418(l)(c)(i)-(iv). Onee a subsection (10) claimant has established a qualifying injury, there is a conclusive presumption that the claimant/employee is permanently totally disabled and no further findings are required. Bee id. § 34A-2-418(10)(a), -(b); see also section 34A-2-418(11)(a). This presumption, therefore, specifically supercedes the Commission's responsibility to make the following findings, pursuant to subsection (1), before awarding permanent total disability benefits to a non-subsection (10) claimant:

(1) the employee is not gainfully employed;
(ii) the employee has an impairment or combination of impairments that limit the employee's ability to do basic work activities;
(ii) the industrial or occupationally caused impairment or combination of impairments prevent the employee from performing the essential functions of the work activities for which the employee has been qualified until the time of the industrial accident or occupational disease that is the basis for the employee's permanent total disability claim; and
(iv) the employee cannot perform other work reasonably available, taking into consideration the employee's age, education, past work experience, medical capacity, and residual functional capacity.

Id. § 34A-2-418(1)(0)@)-(iv). - Accordingly, the plain language of the statute clearly establishes that total permanent disability benefits awarded pursuant to subsection (10) are not subject to, nor controlled by, the claimant/employee's limitations or employability.

118 Moreover, a disability finding made pursuant to subsection (10) is not subject to the requirements of subsection (6) prior to becoming final. Rather, it is final when the claimant/employee establishes the existence of a qualifying injury. See id. § 34A-2-413(10)(b). A subsection (10) claimant is not required to submit to a reemployment evaluation, and the Commission may not dismiss a subsection (10) claim due to a claimant's refusal to cooperate with either a reemployment evaluation or a reemployment plan. See id. § 34A-2-418(9) (requiring the ALJ to dismiss a permanent total disability claim when a claimant "fails to fully cooperate" with "any evaluation or reemployment plan").

{14 Finally, while it is possible to read subsection (7)(a)(ii) as having been drafted so broadly as to encompass claimants who have been awarded benefits pursuant to both processes, see id. §§ 34A-2-413(1), - (6), -(10), to do so would require this court to ignore the clear intent of subsection (10). It is clear that the legislature carefully choose to immunize subsection (10) claims from the rigorous requirements applied to all other claims under the Act. In choosing to eliminate from subsection (10) certain qualifying aspects otherwise applied-i.e., a finding that the claimant is not gainfully employed, a finding that the claimant is unable to perform other work reasonably available, a finding that the quality and nature of the claimant's impairment significantly limits the claimant's ability to perform basic work activities, and the requirement that the claimant submit to a reemployment evaluation, see id. § 34A-2-418(1)(c)(i)-(i), -(6), -(9)-the legislature made the deliberate choice to conclusively certify subsection (10) injuries as per se disabling and not subject to rehabilitation modifications. The legislature clearly established that subsection (10) awards are not negotiable and not subject to reduction. Had the legislature intended any other result, subsection (10) claims would be subject to the same requirements and conditions applied to claims under subsection (1).

115 Accordingly, total permanent disability benefits awarded pursuant to‘s'ecr— tion 34A-2-413(10) are not subject to the reemployment reduction provisions found in section 34A-2-413(7).

CONCLUSION

T16 Based on the foregoing, we conclude that the Commission properly determined that Stephens's injuries fall under the ambit of section 34A-2-4183(10), and that benefits awarded pursuant to subsection (10) are not subject to the modification provisions of seetion 34A-2-413(7).

17 Thus, we affirm the Commission's order. >

[ 18 WE CONCUR: NORMAN H.. JACKSON, Presiding Judge, and PAMELA T. GREENWOOD; Judge.

      . Because the legislature has made no substantive changes to this section since the inception of this action, we cite to the most current version.

      . Utah Code Ann. § 34A-2-413 (2001), also known as the Total Permanent Disability Act (the Act), outlines the scope and availability of total permanent disability payment to all workers injured by accident in the course of their employment. Subsection (10) of the Act deals with a certain class of catastrophic injuries, specifically, injuries resulting from accidents occurring in the course of employment that cause the loss, or loss of use, of more than one substantial body member. Seeid. § 34A-2-413(10).

      . Employer actually separated its argument into two sections, one focusing on the Commission's duty to read the statute as a whole and the other specifically addressing the application of subsection 34A-2-413(7). However, because both arguments are centered on the impact of subsection (7), we focus our analysis solely on this issue.

      . The rules governing amounts and duration of compensation are set forth in Utah Code Ann. § 34A-2-413(2)-(5). In that these provisions have no bearing on the instant case, we see no need to further address them.

      . The rehabilitation provision referred to by Employer is within subsection (7), which establishes that:
      (a) The period of benefits commences on the date the employee became permanently totally disabled, as determined by a final order of the commission based on the facts and evidence and ends:

        (i) with the death of the employee; or
      (ii) when the employee is capable of returning to regular, steady work.
      (b) An employer or its insurance carrier may provide or locate for a permanently totally disabled employee reasonable, medically appropriate, part-time work in a job earning at least minimum wage provided that employment may not be required to the extent that it would disqualify the employee from Social Security disability benefits.
      An employee shall fully cooperate in the placement and employment process and accept the reasonable, medically appropriate, part-time work. (c <
      (h) The administrative law judge may:
      (i) excuse an employee from participation in any job that would require the employee to undertake work exceeding the employee's medical capacity and residual functional capacity or for good cause; or (ii) allow the employer or its insurance carrier to reduce permanent total disability benefits as provided in Subsection (7)(d) when reasonable medically appropriate, part-time employment has been offered but the employee has failed to fully cooperate.
      Id. 34A-2-413(7)(a)-(c), (@). Employer specifically argues that subsections 34A-2-413(7)(a)-(c), -(b)@-(ii), and all provisions relevant to these subsections, are applicable to Stephens and all other similarly situated employees. More to the point, Employer urges this court to conclude that employees awarded benefits pursuant to section 34A-2-413(10) are subject to section 34A-2-413(7)(b)(@i), which, were we to adopt this position, based on the evidence Employer presented to the Commission, would result in a marked decrease in the amount of disability Stephens regularly receives.

      . Moreover, while we need not extend our analysis beyond the plain language of the statute, a brief glimpse of the legislative history of section 34A-2-413(10) and its predecessors also supports our conclusion that the injuries covered under subsection (10) are and have long been considered conclusively and permanently disabling. Cf. Employers' Reinsurance Fund v. Industrial Comm'n, $56 P.2d 648, 651-52 (Utah Ct.App. 1993) (examining the legislative history of Utah's total permanent disability provisions); see also 4 Arthur Larson & Lex K, Larson, Larson's Workers' Compensation Law, § 83.08 (2000) (discussing the total disability presumption).