author: CAROL M. HANSEN, Presiding Judge:

text:
    2003 OK CIV APP 30
    Clifford LOFTIS, Jr., Petitioner, v. MULTIPLE INJURY TRUST FUND, and The Workers' Compensation Court, Respondents.
    No. 97,966.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Dec. 20, 2002.
    Approved for Publication by Order of the Supreme Court Feb. 24, 2003.
    Certiorari Denied March 4, 2003.

      John L. Harlan, Sapulpa, OK, for Petitioner.
    Georgiana Peterson, Pray, Walker, Jack-man, Williamson & Marlar, Oklahoma City, OK, for Respondent.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

{1 Petitioner, Clifford Loftis, Jr. (Claimant), seeks review of a Workers' Compensation Court (WCC) order finding he had no legally cognizable claim against Respondent, Multiple Injury Trust Fund (Fund). The order, noting undisputed facts, denied the claim "as a matter of law" based on Autry v. Multiple Injury Trust Fund, 2001 OK 79, 38 P.3d 218. Autry involved the 1999 amendment to 85 0.8. Supp.1994 § 172, which began the dissolution of Fund by precluding its liability for permanent partial disability (PPD) in actions filed after October 31, 1999. We find Claimant had a vested, constitutionally protected claim against Fund of which he could not be deprived by statutory repeal in the 1999 amendment and vacate the WCC's order.

12 The purpose of establishing Fund (formerly the Special Indemnity Fund) was to encourage employment of previously impaired workers by assuring employers they would be responsible only for compensation benefits stemming from a subsequent injury as though the worker was not previously impaired. Special Indem. Fund v. Treadwell, 1984 OK 91, 693 P.2d 608. Fund would be liable for the increase where the degree of disability caused by combining the previous impairment and subsequent injury is materially greater than impairment from the last injury alone. Special Indem. Fund of Okla. v. Hewes, 1950 OK 11, 214 P.2d 240.

3 The parties agree to the following facts. Claimant suffered compensable injuries to his back, hips and legs in 1990. In 1992, he entered into a joint petition settlement for these injuries in an amount equivalent to 9.3% PPD. On March 8, 1999, Claimant injured his back at work. He filed a claim against his employer as to this latter injury on November 12, 1999. On March 4, 2002, Claimant was awarded 27.5% PPD to the low back, and 10% PPD for psychological overlay, as compensation for the 1999 injury.

T4 On March 28, 2002, Claimant filed a Form 3-F claim for benefits from Fund. He alleged combined disability of 67% and material increase in disability of 20.2% due the combination of the 1990 and 1999 injuries. Fund moved to dismiss the claim. Fund noted in its motion that Claimant filed his claim for his most recent injury on November 12, 1999. In support of the motion, Fund cited Autry v. Multiple Injury Trust Fund, supra, and quoted from 85 0.8. Supp.1999 § 172(A)(2)(@):

"For actions filed before November 1, 1999, if such combined disabilities constitute partial permanent disability ... employee shall receive full compensation for the combined disability ...". (Emphasis in original).

T5 Fund's Motion to Dismiss resulted in the order for which Claimant now seeks otr review. Although the WCC did not expressly state its rationale for denial, it is apparent the order was based on a finding the claim was not filed before November 1, 1999. Claimant argues Autry may be distinguished from the facts of the present case and asserts several constitutional arguments regarding application of § 172 here. We are persuaded by Claimant's contention, pursuant to Art. 5, § 54 of the Oklahoma Constitution, that he could not be deprived of a vested right, and we need not address Claimant's other arguments. The question before us being one of law, our standard of review is de novo, and we give no deference to the legal rulings of the WCC. Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452.

T6 In Autry, the Supreme Court construed $ 172(A), particularly the amendment effective November 1, 1999, which is the center of controversy here. The claimant there, a physically impaired person, sustained a subsequent injury in 1995 and filed his claim against the employer for that injury on September 14, 1999, but did not file his claim against Fund until January 2000. The parties argued over whether the pre-amendment or post-amendment version of § 172(A) applied. The Supreme Court held that was not the dispositive issue, rather it was what the Legislature meant when it precluded Fund's lability for PPD "for actions filed after October 31, 1999" in the 1999 amendment.

T7 The Autry Court found the phrase in question referred to "actions" for PPD benefits against the employer, and not filing an "action" against Fund for material increase in PPD. The Court, noting PPD was not recoverable from Fund after the 1999 amendment, concluded the Legislature would not have made an ineffectual filing the operative event in the statute.

T8 Because the Autry claimant filed his claim against his employer before the October 31, 1999 cutoff date, the Court held he was entitled to claim against Fund. In so holding, the Supreme Court, noting "patent ambiguity" in the amendatory language, based its determination on principles of statutory construction, and reached no conclusion regarding the constitutional implications of the 1999 amendments. In fact, the Court stated in footnote 5 of its opinion:

Today's holding makes it unnecessary to address Claimant's assertion that, if applied to his claim, the 1999 amendment to section 172(A) would constitute a special law cutting off a vested right to benefits from the Fund in violation of due process.

19 In the matter before us, however, Claimant did not file his claim for PPD against his employer until November 12, 1999, after the cutoff date for "actions" filed pursuant to § 172(A). Therefore, unlike Au-try, the question whether Claimant had a constitutionally protected vested right on the effective date of the 1999 amendment is relevant here. As we noted above, Claimant contends he had such a right under Art. 5, § 54 of the Oklahoma Constitution.

10 Art. 5, § 54 provides, in relevant part: The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, ... (Emphasis added).

11 In Rivas v. Parkland Manor, 12 P.3d at 458, the Supreme Court considered and discussed, inter alta, the claimant's assertion that application of § 22(7) of the Workers' Compensation Act was in violation of Art. 5, § 54. The Court noted, ".even the most unrestrained legislature cannot deprive a plaintiff of vested interests." The Supreme Court further noted, at 12 P.3d at 458:

A person acquires a vested right to a remedy for a cause of action when that cause of action accrues. ... In Oklahoma, a party's cause of action acerues when that person can maintain the cause to its legal conclusion, the legal authority to demand redress. ... This means that not only does the individual have the right to pursue the cause, but also has the right, if successful, to the remedies available at the time of accrual. (Citations omitted).

12 Applying the foregoing rules, the Rivas Court determined the claimant's cause of action for his injury accrued at the time of his employment-related accident, and that at no time prior to the injury did he have the right to maintain a cause of action against the employer. In that the statute in question was amended before the claimant's injury, the Court held he was not deprived of any vested rights.

113 Here, however, Claimant sustained the later/subsequent injury before § 172(A) was amended to preclude Fund's liability for PPD. It is well established under our Workers' Compensation law that "the law in effect at the time of an employee's later/subsequent job-related injury is to be used in fixing Fund's liability." Multiple Injury Trust Fund v. Pullum, 2001 OK 115, 37 P.3d 899. Even Fund does not contend it would not have been liable for material increase in PPD under the version of § 172(A) in effect prior to the 1999 amendments.

T14 The question then becomes whether Claimant's right to be compensated by Fund for such material increase accrued at the time of his March 1999 injury. We find that it did. "As a general rule, the accrual of a cause of action means the right to institute and maintain a suit, and whenever one person may sue another, a cause of action has accrued and the statute of limitations begins to run." Cowart v. Piper Aircraft Corp., 1983 OK 66, 665 P.2d 315. In Cowart, the Supreme Court noted accrual of a cause of action does not require that suit shall have commenced at the time of amendment.

{15 The preamendment version of § 172(A) provides:

If an employee who is a "physically impaired person" receives an accidental personal injury compensable under the Workers' Compensation Act which results in additional permanent disability, (Emphasis added).

16 Thus, it is the subsequent compensa-ble injury received by a physically impaired person which allowed recovery from Fund. It was at the moment of his subsequent injury that Claimant's right to proceed against both his employer and Fund arose, and his cause of action acerued The fact that Claimant had the burden to prove compensability of the injury to recover from either does not change the time of accrual.

%17 Claimant's subsequent injury entitling him to proceed against Fund occurred on March 8, 1999. On that date he had a vested right which, onee created, became absolute and was protected from "legislative invasion" by Art. 5, § 54 of our state Constitution. In re Bomgardner, 1985 OK 59, 711 P.2d 92. The 1999 amendment to 85 0.8. Supp.1994 § 172, as applied to PPD actions filed after October 31, 1999, but where the subsequent injury occurred on or before that date, is an unreasonable exercise of legislative authority affecting a vested right in violation of Art. 5, $ 54. See, Plummer v. Special Indem. Fund, 1998 OK CIV APP 136, 965 P.2d 998.

18 The WCC erred in finding Claimant, as a matter of law, had no cognizable claim against Fund. The WCC's order is VACATED and this matter is REMANDED for further proceedings consistent with this opinion.

ADAMS and MITCHELL, JJ., concur.

      . Generally, "[the same action by claimant which will avoid the bar of limitations as to a claim for compensation, also will serve to preserve the claim against the Fund." Special Indem. Fund v. Carlile, 1997 OK CIV APP 14, 939 P.2d 26 (Approved for Publication by the Supreme Court), quoting from Special Indemnity Fund v. Hulse, 1967 OK 219, 441 P.2d 366.


source: Caselaw Access Project

author: JERRY L. GOODMAN, Judge:

license: Public Domain

text:
    2003 OK CIV APP 31
    Georgia N. BURD, Plaintiff/Appellant, v. KL SHANGRI-LA OWNERS, L.P., Highgate Hotels, Inc., and Highgate Holdings, Inc., all d/b/a Shangri-La Resort and John Doe 1-3, Defendants/Appellees.
    No. 98,235.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Dec. 23, 2002.
    Certiorari Denied Feb. 18, 2003.

      Andrew B. Morsman, Andrew B. Mors-man, P.C., Tulsa, OK, for Plaintiff/Appellant.
    Tracy Pierce Nester, Law Offices of Lar-riet E. Thomas, Oklahoma City, OK, for Defendants/Appellees.
   Opinion by

JERRY L. GOODMAN, Judge:

{1 This is Georgia N. Burd's (Patron) appeal from the trial court's August 19, 2002, order granting summary judgment to all defendants on Patron's petition for damages from personal injuries suffered while on defendants' premises. The appeal was assigned to the accelerated docket pursuant to Okla.Sup.Ct.R. 1.36, 12 O.S.2001, ch. 15, app. 1. Based upon our review of the facts and applicable law, we reverse and remand for further proceedings.

FACTS

T2 According to Patron's petition, filed March 16, 2001, she was injured while on the premises owned by the above named corporate defendants (collectively, Shangri-La) on May 12, 1999. Patron was participating in a tennis tournament held at Shangri-La when she tripped over rolls of carpet stored next to the tennis court. The carpet rolls were hidden from plain view by hanging curtains. Shangri-La generally denied the allegations and raised the affirmative defenses of contributory negligence, assumption of the risk, failure to state a claim, and inadequate notice of a dangerous condition.

T3 On May 9, 2002, Shangri-La filed a motion for summary judgment. The motion set out as evidentiary material a document executed by Patron and other members of her tennis league prior to the start of the tennis season. The document stated, in relevant part:

Waiver of Claims: ....
I agree; for myself, my executors, administrators, heirs and personal representatives; that all claims of any kind, nature and description are waived, including past, present and future claims, if any, for injuries sustained in traveling to or from, or participating in, local league play in a USTA/MVTA tennis league. I further agree to release any facility (including, but not limited to, private clubs or public parks), its officers or employees; and any personnel associated with the league itself (including officials, the district association, committees and employees; the USTA, its officers, committees and employees; and any sponsors of the local league). (Emphasis added.)

T 4 Shangri-La sought summary judgment on the basis of this exculpatory clause and also argued that it owed no duty to search for hidden traps or dangers on its premises to protect Patron, whom it characterized as a licensee upon the premises. Shangri-La introduced evidentiary material showing Patron was not registered as a guest at Shan-gri-La, and Shangri-La did not receive any remuneration for the use of its tennis facilities by Patron's tennis league.

{5 The trial court conducted a hearing July 3, 2002, and found as a matter of law:

that the document entitled "Missouri Valley Tennis Association Local League Player Waiver," signed by Plaintiff, contains an exculpatory clause which is effective to relieve Defendants of and from any liability to Plaintiff for the injuries and damages alleged in this action.

The trial court then granted Shangri-La's motion for summary judgment. Patron appeals. We reverse and remand for further proceedings.

ANALYSIS

T6 As set out in Schmidt v. United States, 1996 OK 29, ¶¶ 8, 10, 912 P.2d 871, 874,

While these exeulpatory promise-based obligations are generally enforceable, they are distasteful to the law. For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages; (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and (8) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. (Italies in original) (emphasis added).

Further,

A contractual provision which one party claims excuses it from Hability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved.

17 In the case in controversy, Patron testified that when she executed the waiver at the beginning of the tennis season, she had no idea she would be playing league tennis at Shangri-La. Also, to her knowledge, this was the first time her Tulsa-area team had played there, though Patron had personally played there before. Indeed, Patron stated she "absolutely [did] not" intend to release Shangri-La when she executed the waiver, because at the time of the execution, the league teams had not even been formed, much less had a schedule or location of games been published. Further, Patron had no idea that Shangri-La would maintain what is arguably a hidden danger on its premises and therefore could not "describe the nature and extent of damages from which" Shangri-La now seeks to be relieved. We hold, as a matter of law, that the general, non-specific release of "any facility" was insufficient under Schmidt to relieve Shangri-La from liability.

18 We are not persuaded by Shan-gri-La's attempts to distinguish Schmidt. Indeed we find Schmidt's three-prong analysis to test the validity of an exculpatory contract to be directly on point. While it is true Schmidt did not directly rule on an example of an exculpatory contract, it did answer certified federal questions of law as to how this court should analyze such a contract. Using the Schmidt criteria, we find Patron could not contract away Shangri-La's liability, because (1) Patron did not know she would be playing at Shangri-La; (2) the identity of the tortfeasor was not known to her at the time of the contract; (8) there was no intent, and thus no meeting of the minds, to exculpate Shangri-La, and (4) the language of the exculpatory contract is vague and ambiguous.

9 Nor are we persuaded by Shangri-La's reliance on Manning v. Branmon, 1998 OK CIV APP 17, 956 P.2d 156, decided one year after, and relying on, Schmidt. In the first instance, Shangri-La's motion inaccurately sets out Manning's holding. Shangri-La declares Manning to stand for the proposition that Patron's intent to execute a "waiver" is sufficient to relieve Shangri-La of liability. However, Manning holds as follows:

T7 The Oklahoma Supreme Court has long recognized that exculpatory contracts, Le., a contract to avoid liability for damages also known as a "waiver" or "release," may be valid and enforceable.... That is to say, so long as (1) the intent to excuse one party from the consequences of his or her own megligence is expressed in clear, definite and unambiguous language.... (Emphasis added.)

T 10 Second, in Manning, a divided Court of Civil Appeals Division I held an exeulpato-ry contract signed or initialed by the plaintiff in 14 different places, after watching a video tape wherein an attorney explained in detail the consequences of the document that the plaintiff was about to sign which expressly named the defendant parachute instruction school, and which contained a release of liability, a covenant not to sue, an agreement to indemnify and hold harmless, and a paragraph describing in detail the risks being assumed by the plaintiff, was sufficient evidence of the plaintiff's intent to absolve the school of liability.

111 In the case at bar, the general, nonspecific waiver signed by Patron is completely dissimilar to the detailed, explicit release in Manning. In the instant case, the identity of the possible tortfeasor is unclear, over broad, unnamed, and unknown. Further, the waiver fails to identify the risks being waived, the duration of the waiver, and is arguably ambiguous, given the fact that Patron's signature could be construed as an acknowledgment of the rules of the tennis league, of the waiver of liability, or merely of an indication that she wished to be part of a particular tennis team. We therefore conclude the facts in the case on review are distinguishable from those of Manning, and decline Shangri La's invitation to affirm the trial court based upon Manning.

SUMMARY

1 12 Because the trial court's order clearly states the sole reason for its grant of summary judgment is the existence of the exceul-patory clause which the trial court found as matter of law prevented Patron's recovery, and because we have held such clause to be ineffective as to Shangri-La, we hold the trial court's order must be reversed and the matter remanded to the trial court for further proceedings. The order makes no mention of undisputed material facts, or other reasons that, as a matter of law, would support the grant of summary judgment. Nor do we address the issue of Patron's status as a licensee or invitee, and the respective duties owed to her by Shangri-La, because this was not part of the trial court's stated basis for granting summary judgment.

T13 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

COLBERT, P.J., and RAPP, J., concur.

      . We note this document also serves as a roster sign up sheet and a promise to play by league rules and demonstrate good sportsmanship,

      . The dissent in Manning noted that the record suggested the defendant parachute school may have recklessly packed plaintiff's parachute, thus creating a jury question. A waiver should not, in the opinion of the dissenter, absolve a defendant from his reckless behavior.


author: PER CURIAM:

text:
    2003 UT 11
    Holli LUNDAHL, Petitioner, v. The Honorable Anthony QUINN, Respondent. N.A.R. INC., Mark T. Olson, Olson & Associates, P.C., Anthony Tidwell, D.D.S., and Olympus View Dental Center, Respondents and Real Parties in Interest.
    No. 20030062.
    Supreme Court of Utah.
    April 1, 2003.
    Rehearing Denied April 1, 2003.

      Holli Lundahl, petitioner pro se.
    Brent M. Johnson, Salt Lake City, for Judge Quinn.
    Ronald F. Price, Salt Lake City, for N.A.R., Mark Olson, Olson & Associates, Anthony Tidwell, Olympus View Dental Center.
   PER CURIAM:

1 This matter comes before the court on petition for extraordinary writ. 'The petitioner, Holli Lundahl, asserts she has filed a motion to intervene and an amended counterclaim complaint on which the district court refused to rule because it deemed her a nonparty to the action. Judge Anthony Quinn filed a response, as did N.AR. Inc., Mark T. Olson, Olson & Associates, P.C., Anthony Tidwell, D.D.S., and Olympus View Dental Center as real parties in interest. We deny the petition and further hold that it is frivolous.

T2 As background to this court's order on this petition, a brief recitation of the history of petitioner's many appearances before this court is appropriate. Since 1999, Holli Lun-dahl has submitted no fewer than twenty-seven filings, consisting of nineteen appeals, four petitions for extraordinary writ (including the instant petition), two petitions for writ of certiorari, and two petitions for interlocutory appeal. Of these, five appeals are presently pending before either this court or the court of appeals, two decisions on appeal were summarily affirmed, one decision on appeal has been affirmed per curiam, four appeals were dismissed for lack of jurisdiction (including Hollis attempt to appeal a criminal case where the lower court had dismissed the charges against her), two appeals were dismissed as premature, one appeal was dismissed for an improper rule 54(b) certification, and one appeal was voluntarily dismissed. Three petitions for extraordinary writ, two petitions for writ of certiorari, and two petitions for interlocutory appeal have been denied.

T8 In Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983), this court held that "as a general rule, a party who represents himself will be held to the same standard of knowledge and practice as any qualified member of the bar." Nevertheless, Nelson also noted that " 'because of his lack of technical knowledge of law and procedure [a layman acting as his own attorney] should be accorded ev-

ery consideration that may reasonably be indulged." Id. (bracketed language in original) (quoting Heathman v. Hatch, 13 Utah 2d 266, 268, 372 P.2d 990, 991 (1962)).

{4 Accordingly, this court generally is lenient with pro se litigants. Individuals have a right to represent themselves without being compelled to seek professional assistance. Where they are largely strangers to the legal system, courts are understandably loath to sanction them for a procedural misstep here or there. Holli, however, is hardly a stranger to the legal system. Where most ordinary individuals find themselves in court on only a handful of occasions in their lives, Holli has managed to embroil herself in more litigation in just a few short years than one would think humanly possible. When an individual avails herself of the judicial machinery as a matter of routine, special leniency on the basis of pro se status is manifestly inappropriate.

15 This is particularly true where the filings in question are routinely frivolous and have been brought with the apparent purpose, or at least effect, of harassment, not only of opposing parties, but of the judicial machinery itself. When Holli is unsuccessful in obtaining the relief she seeks, she has not infrequently resorted to collateral attack on the judges who have adjudicated her cases. Indeed, a significant number of the direct appeals Holli has filed have been brought from district court denials of petitions for extraordinary relief naming judges as defendants. Therefore, notwithstanding the dictum in Nelson cautioning courts to be lenient with pro se litigants, we now make clear that the reasonable indulgence that has been afforded to Holli in the past is at an end. Where Holli has chosen to make legal self-representation a full-time hobby, if not a career, it is not too much to expect her to strictly abide by the rules governing the appearances of parties before this court. Therefore, she shall be charged with full knowledge and understanding of all relevant statutes, rules, and case law.

T6 We also note Holli has occasionally employed the right to self-representation in a questionable manner. In this petition, as well as in at least three other recent appellate filings, Holli has purportedly acquired another person's cause of action by assignment and then has professed to represent that cause of action in her own right. The Utah State Bar Rules of Integration and Management do not "prohibit a person who is unlicensed as an attorney at law ... from personally representing that person's own interests in a cause to which the person is a party." Utah State Bar R. Integration and Management R. III(T). However, this exception to the prohibition on the unauthorized practice of law is limited to actions where "the person is a party in his or her own right and not as an assignee." Id. (emphasis added). In this petition, Holli concedes the original cause of action belonged solely to Kelli Lundahl. On pages five and six of her petition, Holli asserts Kelli's counsel abandoned her on the morning of a hearing to determine a motion for summary judgment. Holli then states that "Kelli was unable to obtain other counsel willing to sue an attorney. Accordingly, Kelli assigned her property damage claims to Holli Lundabhl." (Emphasis added.) In other words, the expressed purpose of the assignment was to allow Holli to prosecute the action because Kelli could not obtain a licensed attorney.

17 We offer no ruling at this time regarding whether Holli has violated the pro-seription on the unauthorized practice of law. Nonetheless, it remains pertinent to our purposes here that she actually cited section 78-9-101 of the Utah Code in her petition and that she has been expressly informed in the past that she cannot represent the legal interests of other persons. Consequently, we deem any argument that attempts to distort legal authority for the purpose of evading or circumventing the proscription against unlicensed practice as not brought in good faith.

18 Rule 88(b) of the Rules of Appellate Procedure provides: "[A] frivolous appeal, motion, brief, or other paper is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law." With this standard in mind, we turn to the present petition. The underlying collections action was commenced against Kelli as a defendant. The plaintiffs eventually agreed to dismiss the action with prejudice, apparently due to settlement of the claim. However, the case continued forward because Kelli elected to pursue a counterclaim against the plaintiff and other parties. On November 25, 2002, the district court granted the counterclaim defendants' motion for summary judgment and directed counsel to prepare the order. According to Holli's petition, Kelli assigned her claims on December 4, 2002. Holli asserts she then moved to intervene on December 6, followed by numerous motions and objections. The counterclaim defendants moved for attorney fees, and the district court scheduled a hearing on that matter. Apparently, an order relating to the November 25 ruling was filed on December 27, and the hearing on attorney fees was conducted on January 16, 2003. The transcript of the January 16, 2008, hearing before the district court indicates Kelli appeared and was represented by licensed legal counsel. It is not clear whether Holli was present at the hearing. The district court indicated it would award a fixed amount of attorney fees and directed the counterclaim defendants' counsel to prepare an order. The district court stated it would not address Holli's pleadings because she was not a party to the case. It also specifically stated it would not allow Holli to appear as a party unless she filed a motion for substitution pursuant to rule 25(c) of the Utah Rules of Civil Procedure. Holli then brought the instant petition, requesting an order directing the district court to allow her to intervene as a matter of right.

19 Based on the documentation provided by the petition, it is not warranted by existing law. A petition for extraordinary writ may be brought only where "no other plain, speedy and adequate remedy is available." Utah R. Civ. P. 65B(a). While Holli acknowledges this standard, her petition manifestly fails to comply with it.

110 Where a chose in action is purportedly conveyed after a legal action concerning it already has been filed by the original party in interest, the assignee may be required to obtain a substitution of parties according to the dictates of rule 25(c) of the Rules of Civil Procedure; specifically: "the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action." Utah R. Civ. P. 25(c). While rule 25(c) speaks in permissive rather than mandatory terms, it is clear courts cannot be compelled to recognize a substitution of parties at the whim of the movant. See, e.g., Calder Bros. Co. v. Anderson, 652 P.2d 922, 927 n. 6 (Utah 1982) (upholding denial of motion for substitution of real party in interest, where motion was filed subsequent to default judgment). The provision that the action "may be continued by or against the original party," unless the court grants a motion for substitution, preserves the court's inherent power to manage the case without undue disruption, confusion, or interference. See Briggs v. Hess, 122 Utah 559, 561, 252 P.2d 538, 539 (1958).

T11 Holli instead improperly moved to intervene as a matter of right under rule 24(2). Rule 24(a) grants a right to intervene, upon "timely application," where the applicant "claims an interest relating to the property or transaction which is the subject of the action." Holli, however, cannot claim an independent interest relating to either property or a transaction because the "transaction" at issue is the alleged conveyance of the chose in action itself. If courts were to countenance such subterfuges, it would confer an unconditional right to intervene on the entire universe of individuals or entities legally capable of accepting the assignment of a cause of action.

T 12 Consequently, the district court's justifiable refusal to address a multitude of last-ditch, disruptive legal filings was well within its discretion and supported by Holli's failure to avail herself of the procedural rule designed to afford her the relief she claimed. Holli has documented no basis in law for bringing a petition for extraordinary writ. Nor does she even purport to argue in favor of a good faith extension or modification. Instead, the legal analysis she presents in support of her petition is confined to a con-clusory assertion that she has a statutory right to intervene, accompanied by several manifestly inapposite citations. Where rule 25(c) provided the proper mechanism, if any, for Holli to obtain the relief she requests, her petition for extraordinary relief is frivolous on its face.

113 We therefore turn to the appropriate consequence for filing a frivolous pleading. Rule 33(a) of the Utah Rules of Appellate Procedure provides that "if the court determines that a motion made or appeal taken under these rules is either frivolous or for delay, it shall award just damages." Pursuant to this provision, the real-party-in-interest respondents have requested costs and attorney fees. See Utah R. App. P. 38(c)(1). We hold N.A.R. Inc., Mark Olson, Olson & Associates, P.C., Anthony Tidwell, D.D.S., and Olympus View Dental Center are entitled to attorney fees and double costs for the time and resources expended in defending against this frivolous petition. We direct the district court to determine the amount of those sanctions and to take whatever other actions it deems appropriate within its jurisdictional authority.

114 We also wish to address Holli's history of consuming judicial resources without demonstrating adequate legal justification. Although certain fees are assessed against parties who avail themselves of the services of the courts, the judiciary of this state is largely funded by the taxpayers. It stands to reason that Holli should not be allowed to harass the judiciary of this state at public expense. While this court does not deem it appropriate at this time to assess a fine specifically designed to compensate the state for the resources Holli has consumed with frivolous litigation, there remains the matter of filing fees. Ordinarily, where litigants cannot afford to pay a filing fee, that fee is waived so that poverty will not create a de facto barrier to access to the courts. Hol-Ii routinely has taken advantage of the affidavit of impecuniosity to obtain virtually cost-free access to this court. Under the unusual cireumstances of this case, and in light of her previous multitude of filings, this court enters the following ruling directed to the Clerk of the Utah Supreme Court: In any future filing of a petition for discretionary review by Holli Lundahl, the Clerk shall allow only a conditional waiver of the filing fee. In the event Hollis pleadings violate rule 33 of the Rules of Appellate Procedure, the conditional waiver of the fee will be revoked and Holli Lundahl will be barred from submitting any future filing of a petition for discretionary review until the filing fee is paid.

115 Furthermore, any motion for sanctions brought by an opposing party, or on the court's own motion, shall be judged by the standard set forth above. Specifically, Holli shall not receive any leniency of treatment based merely on nominal pro se status. Other courts of this state may take note of our ruling and respond appropriately. The courts of this state possess the powers necessary to maintain the orderly disposition of matters brought before them, including the power to levy sanctions and, in appropriate cases, to hold in contempt the parties who appear before them.

1 16 In conclusion, we emphasize any prospective penalties will be applicable only to cases where Holli Lundah] fails to meet the threshold requirements of applicable laws and court rules. Any party who comes before the courts is obliged to abide by these in any event. Thus, the prospective portion of our ruling does not mandate sanctions per se, but merely constitutes a reminder and a warning that such sanctions are available and applicable. Holli Lundahl's privilege to access to the courts will be preserved in direct proportion to her willingness to accept the responsibilities accompanying that privilege.

117 Justice PARRISH does not participate herein.

      . Because this matter was originally brought as a counterclaim by Holli Lundabl's sister, Kelli Lundahl, we generally will refer to them by their first names to avoid confusion.

      . Four of the nineteen appeals noted above were consolidated into a single action, leaving sixteen separate appeals for disposition.

      . Lundahl v. Alta View Hospital, No. 20020749; Lundahl v. Qwest Communications, No. 20020748; Lundahl v. IHC, No. 20010336. The response to the instant petition also contains some very troubling allegations that Holli has appeared at hearings and misrepresented herself as Kelli acting pro se. Respondents have attached an affidavit stating a person other than Kelli has appeared at hearings and represented herself as Kelli. We note that this affidavit does not explicitly identify Holli Lundahl as the person appearing; we also note some of the allegations are not supported by affidavit and are hearsay. We therefore make clear that they do not affect our decision today.

      . Subsection 78-9-101(3) of the Utah Code contains substantially the same provision. Initially scheduled to be repealed on May 1, 2003, the repeal date has been extended to May 3, 2004. See H.B. 349 S1, 2003 Gen. Sess. (Utah) (enacted).

      . Eg., Lundahl v. Alta View Hospital, No. 20020749 (letter from court dated October 23, 2002).

      . The respondents to the petition dispute whether this motion was actually filed. They assert Holli obtained a date-stamped copy without leaving a copy for the district court. While these allegations are also troubling, resolution of the conflicting allegations is not material to our decision here. For the limited purpose of reviewing this petition, we will assume the motion to intervene was in fact filed.

      . The bulk of the allegations of fact in Holli's petition are argumentative, conclusory, or irrelevant. Because this court does not have access to the record, it must necessarily rely on those facts, and documents properly derived from that record and submitted as part of the petition to guide its determination of frivolousness.

      . One of Holli's asserted justifications for seeking an extraordinary writ is her claim that the time for filing a notice of appeal began to run on December 27, 2002. The real parties in interest, on the other hand, assert that order was not a final judgment. Regardless, where a timely motion for attorney fees is interposed, the time for filing a notice of appeal does not begin to run until a final order fixing the amount of those fees is entered. See Promax Dev. Corp. v. Raile, 2000 UT 4, ¶ 15, 998 P.2d 254 ("[A) trial court must determine the amount of attorney fees awardable to a party before the judgment becomes final for purposes of appeal."); see also Sittner v. Schriever, 2000 UT 45, ¶ 19, 2 P.3d 442. In this case, the final order on the motion for attorney fees had not been filed at the time Holli submitted this petition, and, in any event, Holli's own failure to timely move for substitution does not create an emergency necessitating this court's intervention.

      . Holli additionally relies on rule 17(a) of the Rules of Civil Procedure. Rule 17(a) requires actions to be brought in the name of a real party in interest. It also prohibits dismissal of the action "on the ground that it is not prosecuted in the name of the real party in interest," until the court has appropriately examined the issue. This rule plainly is inapposite. There is no question the counterclaims initially were brought in the name of a real party in interest. Also, the basis for dismissal of the lawsuit had nothing to do with Holli's belated assertion that she should be allowed to intervene; indeed, the district court granted summary judgment before Holli received her purported assignment.

      . Since rule 38 of the Utah Rules of Appellate Procedure allows the appellate court to independently determine proper substitution of parties, Holli would not have been deprived of her right to seek substitution even if she had brought a proper motion for substitution and the district court had failed to rule on it prior to entry of final judgment. Assuming, without deciding, that a motion for substitution brought just prior to entry of final judgment would not toll the time for filing a notite of appeal, the right to appeal would remain vested in Kelli, and Holli could employ rule 38 to pursue her claim of substitution before the appellate court.

      . For purposes of this rule, "a motion made or appeal taken" necessarily includes all filings that are submitted to this court. Otherwise, parties would be excused from the consequences of filing a frivolous petition for discretionary review.


author: DAVIS, Judge.

text:
    2003 UT App 79
    STATE of Utah, Plaintiff and Appellee, v. Korry Barlow SMEDLEY, Defendant and Appellant.
    No. 20020171-CA.
    Court of Appeals of Utah.
    March 20, 2003.

      David V. Finlayson and Linda M. Jones, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Joanne C. Slotnik, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BILLINGS, DAVIS, and ORME.
   OPINION

DAVIS, Judge.

T1 Defendant Korry Barlow Smedley appeals from conviction of four counts of Aggravated Sexual Abuse of a Child in violation of Utah Code Ann. § 76-5-404.1(8) (1999). We affirm.

BACKGROUND

T2 In August 2000, D.B. called the police and alleged that Defendant had improperly touched her daughters, S.B. and K.B. After a detective (Rackley) interviewed S.B. and KB., Rackley and another detective interviewed Defendant. |

T8 At the outset of the interview, one of the detectives read Defendant his rights under Miranda and Defendant waived his rights. Rackley then informed Defendant that he was a suspect in a sexual abuse case involving S.B. and K.B. Defendant responded that "he [had] never done anything to [S.B. and K.B.]" and asked several times "what kind of a deal he could get if he pled guilty," and "what [would] the penalty ... be?" Defendant stated that "he didn't want [S.B. and K.B.] to have to testify, but he just needed to know what kind of penalties this would come with before he would ... talk ... any further."

"[ 4 During the interview, the detectives did not tell Defendant what the charges could be, discuss penalties or punishment, or indicate that they wanted to or could make a deal with Defendant. Rather, the detectives told Defendant that they did not "make deals with people, that's not our job, that's not our position." They told Defendant they wanted "to talk about the case ... to know ... what happened."

1 5 Following the interview, Defendant was charged with four counts of aggravated sexual abuse of a child. During Defendant's first trial, which ended in a mistrial, Rackley testified that Defendant denied that he had sexually abused S.B. and K.B. and then made several inquiries about a deal. Defendant objected that Rackley's testimony was irrelevant as Defendant's inquiries were not admissions of guilt. The trial court overruled Defendant's objection, noting that Defendant's inquiries were admissions against interest "and/or [statements] made when he's told that any statement you make can and will be [used against you in court]."

T6 Before the jury was seated in Defendant's second trial, Defendant "renewed" his objection that testimony regarding his inquiries about a deal was not relevant. The trial court again overruled the objection. At the conclusion of the second trial, the jury convicted Defendant as charged. Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

T7 Defendant argues Rackley's testimony that he inquired about a deal was inadmissible under rules 410 and 408 of the Utah Rules of Evidence. The State responds that at trial Defendant failed to specifically object to the testimony under rules 410 and 408 and therefore Defendant failed to preserve the issue of inadmissibility under these rules for appeal. We review the adequacy of Defendant's objection de novo.

18 Defendant also argues Rackley's testimony was irrelevant and was therefore inadmissible under rules 401 and 402 of the Utah Rules of Evidence. "A trial court has broad discretion in deciding whether evidence is relevant, and we review a trial court's relevance determination for abuse of discretion." State v. Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d 1194, cert. denied, - U.S. -, 123 S.Ct. 859, 154 L.Ed.2d 805 (2003).

ANALYSIS

I. Preservation

T9 Defendant argues his relevance objection to Rackley's testimony that he inquired about a deal was sufficient to raise the inadmissibility of the testimony under rules 410 and 408 of the Utah Rules of Evidence. Defendant therefore argues he preserved the issue for appeal.

110 "[In order to preserve a contention of error in the admission of evidence for appeal, a defendant must raise a timely objection to the trial court in clear and specific terms." State v. Larsen, 828 P.2d 487, 495 (Utah Ct.App.1992) (alteration in original) (quotations and citation omitted), aff'd, 865 P.2d 1355 (Utah 1998). "Importantly, the grounds for the objection must be dis-tinectly and specifically stated." State v. Winward, 941 P.2d 627, 633 (Utah Ct.App.1997) (quotations and citations omitted). "Where there [is] no clear or specific objection ... and the specific ground for objection [is] not clear from the context ... the theory eannot be raised on appeal." Larsen, 828 P.2d at 495 (alterations in original) (quotations and citation omitted). Moreover, it is well settled that a defendant who objects to the admission of evidence has the burden to "make certain that the record [he] compilefs] will adequately preserve [his] arguments for review.... One who fails to make a necessary objection or who fails to insure that it is on the record is deemed to have waived the issue." State v. Davis, 965 P.2d 525, 537 (Utah Ct.App.1998).

[ 11 The trial record does not contain specific and distinct objections that Defendant's inquiries about a deal involved "plea discussions" within the parameters of rule 410 or "compromise negotiations" within the parameters of rule 408. Nor does the record show that the trial court considered whether the testimony was inadmissible under rules 410 and 408.

$12 However, Defendant argues his relevance objection was based on policy concerns behind rules 410 and 408-ie., that offers to compromise are not relevant evidence. See Fed.R.Evid. 408 advisory committee's note ("As a matter of general agreement, evidence of an offer to compromise a claim is not [admissible]" because "[t]he evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position."). Therefore, he argues the inadmissa-bility of the testimony under rules 410 and 408 was preserved for appeal.

113 We conclude Defendant's relevance objection in this case was insufficient to raise the inadmissibility of the testimony under rules 410 and 408. At trial, Defendant did not argue that his inquiries involved an offer to compromise a criminal case and therefore they were not relevant. Rather, Defendant argued that the inquiries were "typical question[s] that detectives talk with clients ... about, whether or not they'll go easier on them if they talk now," and were not admissions of guilt, and therefore they were not relevant. Moreover, "[rlules 404 to 412 [of the Utah Rules of Evidence] are erystallizations of policies concerning the balance between probative value and costs to society or truth-finding or admitting evidence.... Rules 404 to 412 are designed to deal with large classes of cases through mandatory exclusion, while rule 403" as well as rules 401 and 402 involve "discretionary exclusion." Edward L. Kimball & Ronald N. Boyce, Utah Evidence Law 4-27 (1996) (emphasis added).

«I 14 Based on the record before us and for the foregoing reasons, we conclude Defendant's objection was insufficient to raise the issue of whether Rackley's testimony about Defendant's inquiries was inadmissible under rules 410 and 408. See Larsen, 828 P.2d at 495. Accordingly, we conclude Defendant waived the issue of inadmissibility of the testimony under these rules.

II. Relevancy

$15 Defendant argues Rackley's testimony about his inquiries into a deal was not relevant as his inquiries were not admissions of guilt. "Evidence is relevant i#f it possesses 'any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." " State v. Martin, 2002 UT 34, ¶ 31, 44 P.3d 805 (quoting Utah R. Evid. 401). "I'T]he standard for determining the relevancy of the evidence is 'very low, and even evidence with the ° "slightest probative value" ' is relevant." Id. at 134 (quoting State v. Jaeger, 1999 UT 1, ¶¶ 12, 16, 978 P.2d 404 (quoting Edward L. Kimball & Ronald N. Boyce, Utah Evidence Low 4-2 (1996))). Where evidence "has no probative value to a fact at issue, it is irrelevant and is inadmissible under rule 402." Jaeger, 1999 UT 1 at ¶ 13, 973 P.2d 404; see Utah R. Evid. 402.

16 Defendant argues his inquiries about a deal do not make the State's allegations of sexual abuse or his denial of such abuse more or less probable. Defendant emphasizes that he told the detectives that he sought a deal to protect S.B. and K.B. from having to testify at trial.

117 We disagree that Defendant's inquiries about a deal lack probative value. See Edward L. Kimball & Ronald N. Boyce, Utah Evidence Law 4-4 & n. 18, 4-6 to -7 n. 18, (1996) (indicating accused's willingness to enter into plea bargain has slight probative value but that recourse should be had to rule 403 because likelihood of misuse is large); cf. 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 408.03(4) (Joseph M. MeLaughlin ed., 2d ed.2002) (noting that although offers to compromise civil cases are rejected by courts "on the grounds of irrelevancy ... [as] motivated by a desire to 'buy peacel,lF ... such a motive often co-exists with other factors which indicate a belief in the validity of the claim asserted.... Moreover, evidence of offers of compromise-whatever the motive-meets the modern requirements of relevancy.").

118 In the present case, the detectives informed Defendant that he was a suspect in a sexual abuse case involving S.B. and K.B., not that any charges had been or were going to be filed. Defendant denied sexually abusing S.B. and K.B. and then immediately proceeded to inquire about what kind of deal he could get and what the penalties were before he would "talk ... any further." In context, Defendant's inquiries into a deal and penalties are relevant as to his denial of the allegations of sexual abuse and his consciousness of the allegations' substance.

{19 Defendant relies on State v. Pearson, 818 P.2d 581 (Utah Ct.App.1991), to support his contention that his inquiries about a deal were not relevant. In Pearson, this court affirmed a trial court's ruling that rule 410 barred a defendant from introducing evidence of a prosecutor's plea offer. See id. at 582. In dicta, this court "seriously question{ed] whether plea negotiations are relevant evidence in a criminal prosecution" and noted "[the negotiation strategy and positioning of either the defense or the prosecution is not evidence of the elements of the crime charged." Id. at 584 n. 6.

T20 The present case is distinguishable from Pearson. In the present case, Defendant did not argue at trial that his inquiries involved plea negotiations or positioning of his defense. Further, the record indicates the detectives were investigating the sexual abuse allegations when they interviewed Defendant. Defendant did not offer to plead to charges that had been filed. Rather, Defendant inquired about the possibility of a deal and about possible penalties before he would talk. In doing so, Defendant explained his motive was to spare S.B. and K.B. from having to testify, not that he acknowledged guilt. Thus, the Pearson dicta does not control our analysis.

1 21 Because in context Defendant's ingqui-ries about a deal were relevant to his denial of the sexual abuse allegations and his consciousness of the allegations' substance, we conclude the trial court did not abuse its discretion in admitting Rackley's testimony under rules 401 and 402.

{22 Other jurisdictions have concluded that similar inquiries are admissible against an accused. See Moreland v. United States, 270 F.2d 887, 890 (10th Cir.1959) (concluding accused's inquiry, " 'I am not admitting it or denying it, but what kind of a deal can I make,' " made to city police officers after federal arraignment, tended to incriminate accused and was admissible evidence if made voluntarily); Commonwealth v. Calloway, 313 Pa.Super. 173, 459 A.2d 795, 799 (1983) (concluding accused's statement that he had information he was willing to provide for a deal served as relevant indication of guilt); of State v. Christian, 245 S.W.2d 895, 897-98 (Mo.1952) (suggesting that defendant's inquiry, brought out on cross-examination, as to what would happen to him if he pleaded guilty after denying involvement with robbery, was an admission). But see United States v. Brooks, 536 F.2d 1137, 1138 (6th Cir.1976) (concluding attempt to open plea bargaining with postal inspector was inadmissible), superceded by Fed. R.Crim.P. 11(e)(6) as stated in United States v. Marks, 209 F.3d 577, 582 (6th Cir.2000); but cf. Hereford v. State, 608 So.2d 439, 443-44 (Ala.Crim.App.1992) (concluding accused's offer to pay damages to avoid hassle of prosecution was inadmissible and noting general rule that accused's offer of compromise, even where made to law enforcement official during investigation, was not admissible unless accompanied by an express admission of guilt).

CONCLUSION

123 We conclude that Defendant's relevance objection was insufficient to raise the issue of whether Rackley's testimony regarding his inquiries about a deal was inadmissible under rules 410 and 408. We therefore conclude Defendant waived the issue of inadmissibility under rules 410 and 408. We further conclude that the testimony was relevant under rules 401 and 402. Therefore, we affirm.

1 24 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and GREGORY K. ORME, Judge.

      . Defendant maintains that he inquired about a deal several times before the detectives indicated they could not make a deal. However, during Defendant's first trial, Rackley testified that after Defendant denied the allegations that he had sexually abused S.B. and K.B. and asked about the deal he could get if he pleaded guilty, she told him that she could not make deals. Rackley further testified that when Defendant again inquired about what kind of deal he could get, she "continued to tell [Defendant] that [she could not] make any kind of deals."

      . Moreover, based on the record before us, it does not appear that Defendant's inquiries about a deal would fall within rule 410. In relevant part, rule 410 provides:
      Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

      (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
      '"'Rule 410(4) does not cover plea negotiations with public officials other than prosecuting attorneys." Utah R. Evid. 410 advisory committee's note; see United States v. Grant, 622 F.2d 308, 313 n. 3 (8th Cir.1980) ("Fed.R.Evid. 410[was] never intended to extend to discussions between law enforcement officials and the defendant. Rather, as the [advisory committee's nJote emphasizes, these ... discussions are better analyzed under the established law governing interrogations by law enforcement officials-i.e., the law of the voluntariness of confessions."). Because in the present case there was nothing before the trial court suggesting an agency relationship between the prosecuting authority and Rackley for the purposes of the application of rule 410, we do not address the issue.

      . In relevant part rule 408 provides:
      Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.... This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
      Although the Utah Supreme Court has held that rule 408 does not bar from criminal proceedings admissions and statements made at a conference to settle a civil claim, see State v. Mead, 2001 UT 58, ¶ 46, 27 P.3d 1115, Utah appellate courts have not addressed whether a criminal defendant's attempt to open plea discussions is an attempt to "compromise a claim" or involves "compromise negotiations" under rule 408. Other jurisdictions appear to be split on the issue. Compare United States v. Graham, 91 F.3d 213, 218-19 (D.C.Cir.1996) (noting "[rlule 410 (rather than [rlule 408) strikes the balance between the interest in admitting all relevant evidence ... and the interest in resolving disputes without litigation" in concluding rule 408 "does not address the admissibility of evidence concerning negotiations to 'compromise' a criminal case") and United States v. Baker, 926 F.2d 179, 180 (2d Cir.1991) (concluding rule 408 applies only to civil litigation) with United States v. Verdoorn, 528 F.2d 103, 107 (8th Cir.1976) (suggesting "government proposals concerning pleas should be excludable" under the rationale of rule 408 of the Federal Rules of Evidence).

      . During the first trial, Defendant objected to Rackley's testimony in an unrecorded side bar conference. Subsequently, Defendant made a record of his objection. Defendant noted that he objected to the testimony "based on irrelevance at the time, based on the fact that it was not an admission of guilt of this crime, it was a typical question that detectives talk with clients a lot about, whether or not they'll go easier on them if they talk now and that sort of thing. [It was] not an admission of guilt." The trial court noted, "I [did not] find it was an admission of guilt at all, [it was] an admission against interest and/or [a] statement made when he's told that any statement you make can and will be [used against you in court]." Thus, the trial court's focus was clearly on hearsay and voluntariness, not on rules 410 and 408.
      During the second trial, Defendant renewed his objection based on relevance, the prosecutor responded that the testimony was relevant as an admission, and the trial court noted defense counsel's objection for the record.

      . Defendant also argues the testimony should be excluded because allowing evidence of an accused's inquiry to detectives about the possibility of a plea deal will discourage plea bargaining. See, eg., People v. Ford, 59 Mich.App. 35, 228 N.W.2d 533, 538 (1975) (noting prior to adoption of rule 410, "(als a general rule, offers by an accused to plead guilty are inadmissible on the grounds that plea bargaining is to be encouraged for the purpose of achieving the effective administration of criminal justice and that admissibility of [such offers] would discourage the practice"). Defendant further argues "[flairness dictates that discussions between [DJefendant and the [detectives as part of the prosecution team] should be excluded from evidence." Nothing in the record shows that these policy concerns were raised before the trial court. Cf. Turtle Mgmt., Inc. v. Haggis Mgmt., Inc., 645 P.2d 667, 672 (Utah 1982) (declining to address public policy argument that was not submitted to trial court).

      . The State maintains that Defendant made this "typical question" objection in the first trial and had to renew the objection during the second trial to preserve the objection for appeal. See State v. Lloyd, 662 P.2d 28 (Utah 1983) (per curiam) (concluding defendant was required to make a motion in limine or object to admission of evidence in second trial to preserve claim for appeal although defendant had made a motion in limine that was denied before first trial that ended in mistrial); cf. State v. O'Neil, 848 P.2d 694, 698 (Utah Ct.App.1993) (concluding that following mistrial, law of case doctrine did not limit state and defendant from offering new evidence, motions, and objections; noting that "[if the result were otherwise, the evidentiary problems on ... retrial would be insurmountable").
      Neither the State nor Defendant note that under amended rule 103 of the Utah Rules of Evidence, effective before Defendant's second trial, "[olnce the [trial] court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." Utah R. Evid. 103(a)(2). However, in the present case, Defendant's "typical question" objection did not raise whether the inquiries about a deal involved plea discussions within the parameters of rule 410 or compromise negotiations within the parameters of rule 408. Thus, we do not address the extent to which Defendant was required to renew the objection in the second trial following the mistrial in the first trial.

      . This aspect of Defendant's inquiries was duly recounted by Rackley. Thus, the jury learned of Defendant's apparently selfless motive even as it learned of his interest in a plea deal.

      . Although the day after Defendant made his record on the grounds of relevance during the first trial, he noted that the testimony about his inquiries was also prejudicial, Defendant "did not specifically object to the [testimony] on the ground that the probative value of the usage was substantially outweighed by the potential for unfair prejudice or confusion of the issues." State v. Larsen, 865 P.2d 1355, 1363 n. 12 (Utah 1993); see Utah R. Evid. 403; State v. DeAlo, 748 P.2d 194, 199 (Utah Ct.App.1987) ("[Where evidence [is] shown to have supported only conjectural inferences which had little probative value, or where no evidence was adduced that showed that a fact had any causal connection with the [crime charged], reversal may be appropriate on grounds that the improperly admitted evidence could only have served to confuse and mislead the jury or to prejudice the outcome of the case." (second and third alternations in original) (quotations and citation omitted)). Additionally, although on appeal Defendant alludes to rule 403, which presupposes relevance, Defendant focuses on the relevance of the testimony under rules 401 and 402.

      . In Pearson, this court relied upon State v. Davis, 70 Ohio App.2d 48, 434 N.E.2d 285 In Davis, the court distinguished cases (1980). where an accused's offer to compromise assumes the form of " '[an] admission[ ] against interest' " and cases where an accused seeks to introduce evidence of plea negotiations initiated by a prosecutor. Id. at 287. Furthermore, in Davis, the court relied on rule 403 to affirm the exclusion of plea negotiations, rather than rules 401 and 402. See id. at 288 ("Stated simply, it is that the probative value, if any, of the evidence relating to [plea] negotiations is far outweighed by its possible prejudicial and misleading effect upon the jury." (citing Ohio R. Evid. 403)).

      . In addition to Pearson, we find that two other Utah decisions, decided before the controlling rules of evidence were enacted, are distinguishable from the present case. See State v. Jensen, 74 Utah 299, 279 P. 506, 508 (1929) (concluding general objection of irrelevancy, immateriality, and incompetency to testimony that defendant had pleaded guilty, then withdrew his plea, was sufficient because testimony was inadmissible for any purpose); State v. Hutchings, 30 Utah 319, 84 P. 893, 895 (1906) (concluding that although defendant's admission that he offered to plead guilty to petit larceny and pay for property if burglary charge was stricken, was admissible, it was insufficient to sustain verdict).

      . Most modern cases address whether such inquiries about plea bargains are inadmissible under rule 410 and do not address the basic relevance of the inquiries. See, e.g., United States v. Penta, 898 F.2d 815, 817 (1st Cir.1990) (concluding accused's inquiries about what was going to happen to him if he cooperated were not barred by rule 410); Hite v. State, 718 So.2d 270, 271 (Fla.Dist.Ct.App.1998) (concluding accused's inquiry that might lead to plea offer was not within rule 410).


author: THORNE, Judge:

text:
    2003 UT App 78
    ESTATE OF Dorothy BERKEMEIR, by and through its executor, Karen NIELSEN, Plaintiff and Appellee, v. HARTFORD INSURANCE COMPANY OF THE MIDWEST, Defendant and Appellant.
    No. 20010437-CA.
    Court of Appeals of Utah.
    March 20, 2003.
    Anneliese L. Cook and Mark L. Anderson, Christensen & Jensen, P.C., Salt Lake City, for Appellant.
    Mark A. Larsen and Lisa C. Rico, Larsen & Gruber, Salt Lake City, for Appellee.
    Before JACKSON, P.J., BILLINGS, Associate Presiding Judge, and THORNE, J.
   OPINION

THORNE, Judge:

11 Hartford Insurance Company of the Midwest (Hartford) appeals the trial court's grant of partial summary judgment in favor of the Estate of Dorothy Berkemeir (the Estate) and the denial of Hartford's motion for summary judgment. We affirm.

BACKGROUND

12 On October 16, 1995, James Alexander inexplicably turned his vehicle into oncoming traffic on Interstate 80 causing a collision with Dorothy Berkemeir's car. Berkemeir was injured, and the medical costs associated with treating her injuries exceeded $38,000 Alexander conceded liability. Subsequently, on October 9, 1996, Berkemeir, without objection from Hartford, her insurer, executed a settlement agreement and release with Alexander and his insurance company for the $50,000 limit of his automobile liability policy. Berkemeir then filed a claim with Hartford demanding additional coverage under her un-derinsured motorist policy (UIM)

T8 Hartford conceded that Berkemeir's damages exceeded Alexander's lability coverage; however, Hartford disputed the amount Berkemeir was entitled to under her contract. Thus, the parties entered into arbitration to determine the deficiency in coverage that occurred as a result of Alexander's underinsured status. The parties agreed to a hearing date of July 21, 1997. However, because Hartford desired an independent medical examination, the hearing was later rescheduled. Unfortunately, before the arbitration hearing was held, Ber-kemeir died of causes unrelated to the accident. Following her death, the Estate reduced its demand from $100,000 to $45,580.40, but based on its interpretation of Utah Code Ann. § 78-11-12(1) (1996) (the Survival Statute) Hartford denied the Estate's claim and withdrew from the arbitration. The Estate then filed a complaint in the district court claiming breach of contract, preemptively arguing that the Survival Statute was inapplicable. After Hartford filed an answer, the parties submitted cross-motions for summary judgment preceded by a joint factual stipulation and summary of the parties' legal positions, including argument concerning the applicability of the Survival Statute. Following oral argument, the trial court granted the Estate's motion for partial summary judgment concluding that the action arose out of contract and that the Survival Statute was inapplicable. Hartford petitioned for interlocutory review. The Utah Supreme Court granted the request and transferred the matter to this court. We affirm.

ISSUE AND STANDARD OF REVIEW

T4 Hartford argues that following Ber-kemeir's death the Estate's claim was limited by the Survival Statute, thus, the trial court erred in granting the Estate partial summary judgment. "Because summary judgment is not granted as a matter of fact, but rather as a matter of law, we review the trial court's legal conclusions for correctness." Pixton v. State Farm Mut. Auto. Ins. Co., 809 P.2d 746, 748 (Utah Ct.App.1991). Moreover, " '[iln matters of pure statutory interpretation, [we] review[ ] a trial court's ruling for correctness and give[ ] no deference to its legal conclusions.'" Lieber v. ITT Hartford Ins. Ctr., Inc., 2000 UT 90, ¶ 7, 15 P.3d 1030 (quoting Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 519 (Utah 1997)).

ANALYSIS

T5 Hartford asserts that Berkemeir's death from causes unrelated to the underlying accident relieves Hartford from the duty to pay the Estate any additional UIM benefits. Hartford predicates this argument on its reading of Berkemeir's UIM policy language and the effect that the Survival Statute has on Hartford's duty under the policy. Accordingly, to determine if the trial court erred, we must determine both Hartford's duty under the contract and what effect the Survival Statute has on that duty under these cireumstances.

T6 We turn first to the language of Ber-kemeir's UIM policy. We construe insurance policy language "liberally in favor of the insured and their beneficiaries so as to promote and not defeat the purposes of insurance." U.S. Fid. & Guar. Co. v. Sandt, 854 P.2d 519, 521 (Utah 1993) (quotations and citations omitted). Moreover, "provisions that limit or exclude coverage should be strictly construed against the insurer" and "must be interpreted and construed as an ordinary purchaser of insurance would understand it." Id. at 528. Berkemeir's UIM policy promised that Hartford would pay Berkemeir

compensatory damages which an insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury:
1. Sustained by an insured; and
2. Caused by an accident.
The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the underinsured motor vehicle.
We will pay damages under this coverage caused by an underinsured motor vehicle only if 1 or 2 below applies:
1. The limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements; or
2. A tentative settlement has been made between an insured and the insurer of the underinsured motor vehicle and we:
a. have been given prompt written notice of such tentative settlement; and
b advance payment to the insured in an amount equal to the tentative settlement within 80 days after receipt of notification.

(Emphasis added.)

T7 We have previously determined that "for an insured to satisfy the 'legally entitled to recover criterion, Utah law requires a viable claim that is able to be reduced to judgment in a court of law." Peterson v. Utah Farm Bureau Ins. Co., 927 P.2d 192, 195 (Utah Ct.App.1996) (emphasis added). This "typically entails a lawsuit against the [under-linsured tortfeasor to litigate the issues of liability and damages. A judgment favorable to the insured fixes the insurer's contractual duty to satisfy that judgment, within policy limits." Lima v. Chambers, 657 P.2d 279, 281 (Utah 1982). Thus, the simplest way "for an insured to satisfy the 'legally entitled to recover' criterion" is in the form of " 'a legal determination of the liability of the [under-linsured motorist and the extent of the damages sustained.'" Peterson, 927 P.2d at 195-96 (interpreting Lyon v. Hartford Accident & Indem. Co., 25 Utah 2d 311, 480 P.2d 739, 745 (1971)). However, the Utah Supreme Court has stated, in the context of uninsured motorist insurance;

"The aim of the uninsured motorist statute is to minimize the catastrophic financial loss for victims of automobile accidents caused by the negligence of uninsured tort-feasors. We believe it is wholly inconsistent with this broad remedial purpose to permit the insurer to evade mandated coverage by erecting an artificial, arbitrary barrier to recovery."

Marakis v. State Farm Fire & Cas. Co., 765 P.2d 882, 884 (Utah 1988) (quoting Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 424 N.E.2d 234, 238 (1981)). Moreover, " 'the purpose of mandatory uninsured-motorist insurance is "protection equal to that which would be afforded if the offending motorist carried lHability insurance [The insurer stands in the shoes of the uninsured motorist [UM} and must pay if [the motorist] would be required to pay."'" Chatterton v. Walker, 938 P.2d 255, 260 (Utah 1997) (quoting Fetch v. Quam, 530 N.W.2d 337, 339 (N.D.1995)). While the court clearly made this statement in reference to uninsured motorist coverage, we see no reason that this logie should not apply equally to statutorily mandated UIM coverage. Ree Utah Code Ann. § 31A-22-305 (2001); Lieber v. ITT Hartford Ins. Ctr., Inc., 2000 UT 90, ¶ 8, 15 P.3d 1030 (accepting our application of UM case law to cases involving UIM claims).

8 The supreme court has also determined that once an insured claims under their UIM coverage, the relationship between the parties changes from a third-party relationship, to a first-party adversarial relationship. See Beck v. Farmers Ins. Exch., 701 P.2d 795, 799 (Utah 1985). As a result, the supreme court concluded that "the duties and obligations of the parties are contractual rather than fiduciary. Without more, a breach of those implied or express duties can give rise only to a cause of action in contract, not one in tort." Id. at 800 (footnote omitted) (emphasis added).

T9 Hartford, after acknowledging the existence of the preceding authority, argues that this case is instead controlled by Peterson v. Utah Farm Bureau Ins. Co., 927 P.2d 192 (Utah Ct.App.1996), and that absent a legal determination of Berkemeir's damages, they were under no contractual duty concerning Berkemeir's claim either before or after her death. In Peterson, we concluded that " 'a legal determination of the liability of the [under-Jinsured motorist and the extent of the damages sustained,": id. at 196 (citation omitted), are predicate elements necessary to trigger an insurer's contractual duty. However, in Lieber the Utah Supreme Court adopted a different interpretation of the phrase "legally entitled to recover," and concluded that a claimant is legally entitled to recover if they "have 'a viable claim that is able to be reduced to judgment."" Lieber, 2000 UT 90 at ¶ 8, 15 P.3d 1030 (emphasis added) (quoting Peterson, 927 P.2d at 195). In so concluding, the supreme court, by inference, chose not to adopt the more rigorous standard we set forth in Peterson. Accordingly, to qualify under the "legally entitled to recover" language of a UIM contract, a party is not required to establish that a legal determination has been made. Rather, absent specific language to the contrary contained within the contract, a party is "legally entitled to recover" if they can show the existence of a " 'viable claim that is able to be reduced to judgment."" Id. (emphasis added) (citation omitted). We see no reason that this showing cannot be made with either a judgment entered by a trial court, or a formal, or informal, settlement agreement between the parties.

{ 10 Here, Hartford accepted from the outset the fact that Alexander caused the acci-

dent that resulted in Berkemeir's injuries. Hartford, without objection, allowed Berkem-eir to enter into a settlement and release with Alexander and his insurance company for the limits of his policy. Then, when Berkemeir approached Hartford and submitted a demand under the terms of her UIM policy, Hartford conceded that her injuries exceeded the limits of Alexander's policy. To determine the amount due, the parties, under the terms of Berkemeir's policy, entered into arbitration. We conclude that Hartford's concessions concerning Alexander's lability and its concession that Berkemeir's damages exceeded Alexander's policy limits, as well as its reliance on language from Berkemeir's insurance contract relating to arbitration, qualify as a settlement "that is able to be reduced to judgment in a court of law." Id. at 195. Thus, by its own actions, Hartford acknowledged its duty under the contract concerning Berkemeir's UIM claim. See U.S. Fid. & Guar. Co. v. Sandt, 854 P.2d 519, 521 (Utah 1993) (setting forth our rule requiring this court to construe insurance policy language "liberally in favor of the insured and their beneficiaries so as to promote and not defeat the purposes of insurance" (quotations and citations omitted)).

111 Our conclusion does not, however, necessarily resolve the question of whether the Estate's claim is limited by the Survival Statute. To make that determination, we must examine the Survival Statute to determine its effect on this claim. When we are "called upon to interpret a statute, 'our primary goal is to give effect to the legislature's intent in light of the purpose the statute was meant to achieve"" Lieber, 2000 UT 90 at ¶ 7, 15 P.3d 1030 (quoting Evans v. State, 963 P.2d 177, 184 (Utah 1998)). The Survival Statute in force at the time of Berkemeir's death provides;

(a) Causes of action arising out of personal injury to the person or death caused by the wrongful act or negligence of another do not abate upon the death of the wrongdoer or the injured person.
(b) If prior to judgment or settlement the injured person dies as a result of a cause other than the injury received as a result of the wrongful act or negligence of the wrongdoer, the personal representative or heirs of that person are entitled to receive no more than the out-of-pocket expenses incurred by or on behalf of that injured person as a result of his injury.

Utah Code Ann. § 78-11-12 (1996). Hartford's argument relies on the phrase "arising out of personal injury" and focuses on the intended scope of this language. Thus, we examine the statute to determine the intended seope of its coverage.

112 Hartford's interpretation of the phrase "arising out of personal injury" suggests that the statute is meant to limit any claim involving a personal injury when the person injured dies before the action is fully adjudicated. The Estate, on the other hand, urges a different interpretation focusing more on the general fact that tort actions "arise out of personal injury" and asserting, therefore, that the Survival Statute applies only to actions in tort. Because we conclude that both interpretations are reasonable, see Derbidge v. Mutual Protective Ins. Co., 963 P.2d 788, 791 (Utah Ct.App.1998) (" 'Ambiguous' means capable of ' "two or more plaust-ble meanings." '" (citations omitted)), we look beyond the statute's plain language to determine the legislative intent. See id. ("When statutory ambiguity exists, we must determine the 'legislature's intent in light of the entire statute's purpose' ... Our analysis is further guided by the Legislature's blanket directive that statutes 'be liberally construed with a view to effect the objects of the statutes and to promote justice." " (citations omitted)).

113 In Kynaston v. United States, 717 F.2d 506 (10th Cir.1983), the Tenth Circuit Court of Appeals addressed Utah's Survival Statute and described its genesis in relatively specific terms. The court explained;

At common law, actions for personal injury torts ... do not survive the death of the wrongdoer. To remedy this defect, Utah enacted its first survival statute in 1953. The purpose of the statute was not to create a new cause of action as the wrongful death statute did, but rather to abrogate the common law rule of abatement and continue or perpetuate ("survive") a cause of action in existence before the wrongdoetr's [or victim's] death.

Id. at 509. The court further stated, "[slur-vival statutes provide for the continuance of an injured person's cause of action in order to preserve any interests which have accrued in the recovery of damages to his estate should he die prior to the resolution of the suit." Id. at 511. We agree with the Tenth Circuit's reading, and after reviewing the history of Survival Statutes in general, we agree with the position urged by the Estate. Our conclusion is supported by the general history surrounding survival statutes, which clearly indicates that "[bloth at common law and under statute, it is a general rule that a cause of action founded on a contract survives the death of either party and a pending contract action does not abate on the death of a party." 1 C.J.S. Abatement and Revival § 147(a) (1994) (footnotes omitted). Moreover, our conclusion is further supported by the fact that at common law, actions that are only "nominally laid in tort," but actually lay in contract, generally are not subject to abatement. Id. § 147(b) (footnote omitted).

T 14 We conclude that the Survival Statute was adopted to abrogate the common law rule of abatement in tort actions that was applied following the death of either the tort-feasor or the injured party. See id. § 180. Because we can discern no other reason for the legislature's adoption of the Survival Statute beyond its desire to mitigate the common law rule of abatement, we conclude that the elimination of the abatement of tort actions was the intended target of the Survival Statute.

15 Here, while there is no dispute that the origins of Berkemeir's claim against Alexander "arose out of personal injury," the subject of the present dispute does not actually arise from her physical injuries. Rather, the present dispute arose only after Hartford's duty under the contract was triggered and Hartford then allegedly failed to meet its obligation. Thus, the Estate's claim arose solely from Hartford's alleged breach of the contract and not from Berkemeir's personal injury. Therefore, because the Estate's claim sounds in contract, not tort, it is unaffected by the Survival Statute. But see Beaudry v. State Farm Mut. Auto. Ins. Co., 518 N.W.2d 11, 13-14 (Minn.1994) (concluding, under nearly identical circumstances, that the cause of action was limited by Minnesota's Survival Statute).

116 Accordingly, we affirm the trial court's order denying Hartford's motion for summary judgment and granting the Estate partial summary judgment. Thus, we remand this case to the trial court to determine the extent of the contractual damages.

CONCLUSION

17 Hartford's concessions concerning liability and the extent, if not the specific amount, of damages resulting from Berkem-eir's accident triggered its duties under the contract. Moreover, the Survival Statute is intended to abrogate the common law rule of abatement in tort actions and has no affect on contract claims. Accordingly, we affirm the trial court's decision to grant the Estate partial summary judgment.

18 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JUDITH M. BILLINGS, Associate Presiding Judge.

      . Berkemeir was a passenger in the vehicle at the time.

      . In compliance with Berkemeir's insurance policy, Hartford paid her the limits on both her extended coverage provision and personal injury protection clauses, a total of $10,000.

      . Berkemeir demanded the limit of her UIM policy, $100,000.

      . This argument is based on the assumption that the prior amounts paid to Berkemeir satisfied her out-of-pocket expenses, which is all that is required under the Survival Statute. See Utah Code Ann. § 78-11-12(1) (1996). Because we conclude that the Survival Statute has no impact on the present case, we do not address in this context the meaning or impact of the phrase "out-of-pocket expenses."