author: TAYLOR, J.

text:
    2000 OK CIV APP 71
    RICE-BELL PARTNERSHIP, Plaintiff/Appellant, v. CAPITOL INDEMNITY CORPORATION, Defendant/Appellee, and Gene Haynes, District Attorney for the 12th District, Jerald Allison, Agri-Services, Bill Allard, Charlie Brackett, B-Bar-T, Dave Branham, Don Carnes, C.B. Cattle, Andy Chupp, Chupp Girls Dairy, E.J. Chupp, Spa Emanuel Chupp, Nick Clark, Claudan Ranch, Clear View Ranch, Janet Clinton, Eldora Coblentz, Lloyd Coblentz, Morris Cole, Complete Auction, Julie Cooper, Jim C. Crow, Craig Coverdell, Patsy Dernan, Eli Detwiler, Willis Detwiler, Erin Dixon, Dixon Ranches, Tim Durman, Billy Dye, Ruby Dye, Walter Eastom, Gayle Forbes, Larry Foster, Dean Garrett, Ivan Gingerich, Adolph Golbek, Steven Guilfoyle, Hardin Farms, William Hartley, John Hanna, Ray Haxley, Dale Holly, Troy Jackson, Bill Jones, Tom Kelley, Clay King, Jennifer Larmon, Brooks Ledbetter, George Linihan, Carl Lukas, Billy McDowell, Christie Miller, Ralph Miller, Sam Miller, George Moore, Parsons Livestock, Wanda Peeples, Pryor Veterinary Hospital, Lloyd Rambo, W.C. Rice, Floyd Schrock, Steer, Inc., Garry Steinhoff, Clyde Stout, Billy Ivan Tackett, Earl Troyer, Brandon Wade, Jim Wade, Doug Wagner, Angela Warren, Gary Walsh, J.D. Walsh, William Watkins, Gene White, Glenn Yoder, Nelson Yoder, Mose Yoder, Defendants, and Oklahoma Department of Agriculture, Intervenor.
    No. 92,289.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    March 28, 2000.
    Certiorari Denied May 16, 2000.

      Paul H. Petersen, Tulsa, Oklahoma, R. Benjamin Sherrer, Randall Elliott, Randall Elliott, P.C., Pryor Creek, Oklahoma, For Appellant.
    Evan B. Gatewood, Hayes & Magrini, Oklahoma City, Oklahoma, For Appellee.
   OPINION

TAYLOR, J.

11 Plaintiff, Rice-Bell Partnership, appeals the trial court's order finding that Rice-Bell was not entitled to recover on a bond issued by Defendant, Capitol Indemnity Corporation. Based on the record and applicable law, we affirm.

1 2 The genesis of this lawsuit is a $100,000 loan Rice-Bell made to Pryor Livestock Market (PLM), a livestock auction operation. Federal regulations promulgated pursuant to the Packers and Stockyards Act, 7 U.S.C. §§ 181-2831 (1999), required PLM to maintain a trust account for depositing proceeds of livestock sales and disbursing those proceeds to livestock sellers. PLM told Rice-Bell its account was short, and it needed the loan to pay dairy cattle owners who had recently sold their cattle at auction.

T3 Rice-Bell made the loan, with PLM signing a note requiring it to repay the money at 20 percent interest in two weeks. Rice-Bell received a security interest in PLM's accounts receivable, inventory, and equipment. The $100,000 was deposited in PLM's trust account and used to pay the cattle sellers.

T4 PLM failed to repay the loan. The Oklahoma Department of Agriculture closed PLM for additional shortages in its account resulting from a later auction. Rice-Bell sued PLM, asserting PLM fraudulently induced the loan. Rice-Bell ultimately obtained a default judgment.

15 In addition to requiring the trust account, the Packers & Stockyards Act required PLM to obtain a livestock bond. Relevant to this appeal, PLM obtained a bond from Capitol in the amount of $60,000. The bond stated:

Now, Therefore, the Condition of this Bond is such that:
Applicable if Principal [here, PLM}
SELLS on commission[:] (1) If the said Principal shall pay, when due to the person or persons entitled thereto the gross amount, less lawful charges, for which all livestock is sold for the accounts of others by said Principal,
then this bond shall be null and void, otherwise to remain in full foree and virtue, subject to the following terms, conditions and limitations{.]

T6 The other conditions of the bond dealt with cireumstances not applicable here: where the Principal bought on commission, or as a dealer or a packer, or acted as a clearing agency. The bond also provided that:

(c) Any person damaged by failure of the Principal to comply with any condition clause of this bond, may maintain suit in his own name to recover on this bond even though such person is not a party named in this bond....

T7 Rice-Bell sued Capitol for the proceeds of the bond, asserting it was entitled to be equitably subrogated to the cattle sellers' claims against the bond. It also asserted it was entitled to the bond's proceeds because it was a "person damaged" under the bond's above-quoted clause (c).

€ 8 The trial court denied Rice-Bell's claim against the- bond. It held that the bond did not cover Rice-Bell's claim, and that the bond's clause (c) did not create coverage for Rice-Bell. It further held that PLM had misrepresented its ability to repay the loan, but that Rice-Bell had made a voluntary loan that did not create any subrogation rights entitling Rice-Bell to recover on the bond.

19 Rice-Bell appeals. We note Rice-Bell also sued a group of cattle sellers and District Attorney Gene Haynes, who held proceeds from the sale of their cattle at a PLM livestock auction conducted after Rice-Bell made the loan. The trial court held these sellers were entitled to the proceeds and to a portion of the bond. Rice-Bell has dismissed the portion of this appeal dealing with those sellers' rights to the funds. Therefore, the subject of this appeal is the net remaining balance of the bond, which is $26,846.

110 In matters of equitable cognizance, the trial court will be affirmed unless its decision is clearly contrary to the weight of the evidence. Burdick v. Independent Sch. Dist. No. 52, 1985 OK 49, ¶ 12, 702 P.2d 48, 54-55. When the law and the facts warrant, an equity decree may be affirmed if it is sustainable on any rational theory and the ultimate conclusion reached is legally correct. Bankoff v. Board of Adjustment, 1994 OK 58, ¶ 17, 875 P.2d 1188, 1148.

T11 A review of the language of the bond reveals the trial court correctly determined that the bond did not cover Rice-Bell's claim. The bond states that it would cover those persons entitled to the gross amounts for which all livestock was sold. Obviously, Rice-Bell is not a cattle seller and is not therefore "a person due" the proceeds from the sale of cattle at the auction.

€12 Additionally, the trial court correctly determined that Rice-Bell is not "a person damaged" for purposes of the bond's clause (c). Rice-Bell contends that if PLM had paid the cattle sellers at the subsequent auction, then the money that was held by the District Attorney as proceeds from that auction would be considered accounts receivable in which Rice-Bell held a security interest.

"13 This argument is based on speculation and could be made by any lender or general creditor of PLM: that if PLM had somehow found other sources of income to pay the cattle sellers, any excess money collected from the sales would be available for recovery. Also, this argument ignores the reason Congress promulgated the bonding requirement in the Packers and Stockyards Act: "... to safeguard the formers and ramchers who produce cattle against the losses they would suffer if they sold their livestock to insolvent or defaulting purchasers." Travelers Indem. Co. v. Manley Cattle Co., 553 F.2d 948, 945 (5th Cir.1977)(footnote omitted; emphasis added). In Travelers, Baker (a dealer) bought cattle, sold them to another party, and then bought them back in a complex series of transactions involving a lender who provided financing and operated a feed lot in which the cattle were placed. The lender asserted it had participation rights in a bond obtained by Baker. The court held:

These are not the types of transactions intended to be secured by the bond required of registered dealers under the Packers and Stockyards Act and its implementing regulations.
The purpose of the bond requirement in the original enactment of the Packers and Stockyards Act, Act of Aug. 15, 1921, ch. 64, § 1, 42 Stat. 159 (1921), was to safeguard the farmers and ranchers who produce cattle against the losses they would suffer if they sold their livestock to insolvent or defaulting purchasers. By building confidence in the financial stability of dealers, the Act intended to stabilize and encourage the production of beef and other livestock. The 1958 amendments did not change this concept of protection....
Baker's bond, by its terms, assured payment of the price of cattle purchased by Baker as a dealer for his own account. Baker had bought and paid for the cattle involved in this transaction and the growers who made these original sales are not claimants. Hence, any potential bond obligation as to the purchase price of this lot of livestock had been effectively discharged and the purposes of the Act to secure the purchase transaction from the farmers and ranchers who had produced the cattle had been fulfilled....

Id. at 945 (footnotes omitted). The Fifth Circuit then affirmed the trial court's judgment denying the lender any participation rights in the bond.

{14 Though the facts in Travelers are more complex than in the instant case, we agree with the court's analysis,. Though the Act states it is to be liberally construed, it also states it is to be construed according to its purpose of preventing economic harm to the producers and consumers of livestock. Miles v. Starks, 590 S.W.2d 223, 226 (Tex.Civ.App.1979). We conclude, as the trial court did, that the bond does not cover Rice-Bell's claim.

115 Finally, we agree with the trial court that Rice-Bell was not entitled to be equitably subrogated to the cattle sellers' claims against the bond. There are two types of subrogation: conventional and-at issue here-legal, or equitable. See Lawyers' Title Guar. Fund v. Sanders, 1977 OK 210, ¶ 4, 571 P.2d 454, 456. Equitable subro-gation is a creature of equity, and is a fluid concept dependent upon the particular facts and cireumstances of a case. It is based on natural justice's placement of the burden of bearing a loss where it ought to be, and is without the form of a rigid rule of law. Id.

However, equity cannot be invoked to change rights defined and established by law, or to create a right where none exists. In re Estate of Redwine, 1968 OK 122, ¶ 17, 445 P.2d 275, 278. We believe Rice-Bell asks too much of equity to enforce a bond which, by its own terms and by the clear intent of Congress, is limited to protecting livestock sellers who would suffer losses if they sell to insolvent or defaulting purchasers.

T17 In Lawyers' Title, cited above, the Oklahoma Supreme Court determined that justice required placing the burden of a loss on parties who breached a warranty and were unjustly enriched. By contrast, in the instant case, Capitol has not been unjustly enriched. It contracted to pay a loss only if certain conditions occurred. We cannot agree with Rice-Bell that Capitol should have to bear the loss Rice-Bell has suffered.

1 18 AFFIRMED.

119 RAPP, P.J., and REIF, J. (sitting by designation), concur.


source: Caselaw Access Project

author: ADAMS, Judge:

license: Public Domain

text:
    2000 OK CIV APP 76
    NESTLE FOOD COMPANY and Constitution State Service Company, Plaintiffs/Appellants, v. AMERICAN STATES INSURANCE COMPANY, Defendant, and Patricia L. Crews, Defendant/Third-Party Plaintiff/Appellee, v. James Reid, Third-Party Defendant.
    No. 93,900.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 1, 2000.

      Mark T. Koss, McNulty, Koss & Associates, Oklahoma City, Oklahoma, For Plaintiffs/Appellants.
    Michael W. Phillips, Boettcher, Ryan & Martin, Oklahoma City, Oklahoma, For Defendant/Third-Party Plaintiff/Appellee.
   OPINION

ADAMS, Judge:

T1 According to the uncontroverted facts shown in this record, on August 25, 1998, Patricia Crews sustained injuries in a motor vehicle accident allegedly caused by the negligence of a driver who was covered by a motor vehicle liability insurance policy issued by American State Insurance Company (Insurer). The accident occurred while Crews was in the course and scope of her employment. Crews received workers' compensation benefits from her employer, Nestle Food Company, which were administered by Constitution State Service Company.

12 On August 24, 1995, Crews filed an action for negligence against Insurer's insured, and ultimately settled with Insurer no earlier than April 2, 1998. Although Insurer was on notice of a subrogation interest asserted by Nestle and Constitution (collectively, Employer), the settlement proceeds were payable only to Crews, her husband, and her attorney, James Reid. On February 5, 1999, Employer filed this action against Insurer and Crews seeking its portion of the settlement proceeds under 85 0.8.1991 44. Crews filed a third-party petition against Reid.

T8 The trial court dismissed Employer's action against Insurer, concluding the statute of limitations had expired. Employer appealed, but the trial court's decision was affirmed by another division of this Court in an unpublished opinion. That decision is now pending before the Oklahoma Supreme Court on Employer's Petition for Certiorari. Crews also filed a Motion for Summary Judgment in which she argued that Employer's action was governed by the same two-year statute of limitation applicable to her action against the tortfeasor and that Employer's action was therefore barred.

T4 In response, Employer contended its action was based on a liability created by statute, namely 85 0.8.1991 44. According to Employer, its statutory cause of action accrued when Crews settled the case and the three-year statute of limitation contained in 12 0.8.8upp.1994 95(2), which sets a three-year limitation period for "an action upon a liability created by statute other than a forfeiture or penalty," began to run on that date. Under Employer's theory, its suit was filed less than one year after its cause of action accrued and was not time-barred. The trial court applied the two-year statute of limitation and determined it ran from the date Crews was injured. Accordingly, the trial court sustained Crews' motion and dismissed Employer's action against her.

15 This case presents a question of law, {e., is Employer's action against Crews controlled by the two-year statute of limitation applicable to her action against the tort-feasor or is it governed by the three-year statute of limitation as an action on a liability created by statute. The Oklahoma Supreme Court directly confronted this issue under similar circumstances in a case decided after the trial court's decision in this case. In ACCOSIF v. American States Insurance Company, 2000 OK 21, 1 P.3d 987, the Court held an employer's claim to reimbursement from an employee for workers' compensation benefits out of the proceeds of a settlement with the tortfeasor who allegedly caused the job-related injuries was a liability created by statute. The Court held the three-year statute of limitation began to run when the employee first became entitled to the settlement. ACCOSIF specifically rejected the reasoning that the employer's claim was a subrogation claim and subject to the same limitation as the injured employee's claim against the tortfeasor.

16 Applying ACCOSIF to the undisputed facts in this case, we must conclude the statute of limitations has not expired on Employer's claim against Crews. The trial court's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

T7 REVERSED AND REMANDED

T8 HANSEN, V.C.J., and JOPLIN, J., concur.

      . Apparently, in dismissing the action against Insurer, the trial court made the findings required by 12 O.S.Supp.1994 994(A) so that its order would be final and appealable.

      . Ten days later, Crews dismissed her third-party action against Reid with prejudice and filed this Petition in Error.


text:
    2000 OK CIV APP 78
    Joe Ray BROWN, Petitioner, v. NCI, INC., Petrosurance Casualty Company, and the Workers' Compensation Court, Respondents.
    No. 94,031.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 12, 2000.
    Patricia F. Brion, Dawkins Law Firm, Oklahoma City, Oklahoma, For Petitioner.
    Trent W. Keller, Keller, Keller & Dalton, Oklahoma City, Oklahoma, For Respondents.
   OPINION

ADAMS, Judge:

11 Claimant Joe Ray Brown (Claimant) was injured on September 8, 1995, when a steel beam fell 10-12 feet, striking his head, which was covered by a hard hat, and upper back and knocking him to the floor, where he hurt his left elbow and left knee. At the time of this incident, Claimant was working for NCI, Inc. (Employer) as a welder and millwright. Claimant received treatment for his injuries, and three weeks later, filed a workers' compensation claim, listing injuries to his "head and knee." His claim was amended on April 16, 1997, to include injury to his upper back. An Order for Medical Examination was filed on February 13, 1998, requesting evaluation of Claimant's alleged injuries to the "NECK, HEAD AND BACK.

T2 At a hearing on the compensability of Claimant's alleged injuries, authorization for surgery on his low back, and continuation of temporary total disability compensation, Employer admitted injury to Claimant's neck, left knee and left elbow, but denied "any injury to the low back or any notice thereof in this claim." After argument concerning Claimant's failure to file a Form 8 that listed a low back injury, the trial court granted, over Employer's objection, Claimant's request to amend his claim to include that alleged injury, reserving the decision of its compensability until all the evidence was presented.

8 In an order filed on July 19, 1999, the workers' compensation trial judge found, in paragraph 1, that "on September 8, 1995 ... [Claimant] sustained an accidental personal injury to the LEFT LEG (KNEE), LEFT ARM (ELBOW), NECK and LOW BACK arising out of and in the course of [Claimant's] employment" with Employer. After awarding Claimant temporary total disability benefits, the trial judge further found, in paragraph 5, that Claimant "is in need of further reasonable and necessary medical care specifically including surgery to his LOW BACK," and in paragraph 6, that Employer "is to provide [Claimant] with further medical care and treatment including LOW BACK surgery under the supervision of [Dr. OJ."

T4 Employer filed an en bane appeal, alleging, inter alia, that the trial court "abused its discretion by allowing [Claimant] to add the lower back as a body part years after the claim was filed" (emphasis in original) and "erred in finding [Claimant] sustained injury to the low back." Finding that parts of the July 19, 1999 order were contrary to law and against the clear weight of the evidence, the three-judge panel, by a divided vote, vacated paragraphs 1, 5 and 6, and in lieu of paragraph 1, entered the following paragraph:

THAT on SEPTEMBER 8, 1995, [Claimant] was employed by [Employer] and such employment was subject to and covered by the provisions of the Workers' Compensation Act of the State of Oklahoma; and on said date [Claimant] sustained accidental personal injury to the LEFT LEG (KNEE), LEFT ARM (ELBOW), AND NECK arising out of and in the course of [Claimant's] employment.

The panel's order finally held that "the order filed herein on JULY 19, 1999, as modified, shall remain in full force and effect as the order of this Court."

15 Claimant then filed this review proceeding, arguing that the panel's order is defectively vague and non-responsive to the central issue at trial, i.e., the issue of com-pensability of the low back, and the case should be remanded to address that specific issue. We agree.

16 The Workers - Compensation Court is required to make specific findings of the ultimate facts responsive to the issues formed by the evidence as well as conclusions of law upon which its order is to be rested. When these elements are not present in a panel's order or are too vague and uncertain for judicial interpretation, we will not hypothesize about the evidence upon which the trial tribunal may have relied to arrive at its decision. Benning v. Pernwell Publishing Company, 1994 OK 113, 885 P.2d 652.

7 The order under review, as modified by the panel, does not address Claimant's contention that his low back was injured in this accident or the notice defense raised by Employer. At least where a timely petition for review has been filed, we do not treat the order's silence as a denial. See Frair v. Sirloin Stockade, Inc., 1981 OK 117, 685 P.2d 597, where the Court remanded the case for entry of an order expressly addressing claimed injuries which were not addressed in the order under review.

T8 Even if we were able to treat the panel's action in vacating portions of the trial judge's order as a denial, we still cannot determine whether the panel rejected, as a matter of law, the trial judge's granting of Claimant's request to amend his Form 3 or its factual finding on the compensability of Claimant's "low back" injury. As in Frain, we sustain the panel's order insofar as it awards Claimant benefits for injuries to his left arm, left leg, and neck, but remand the case for entry of an order addressing Claimant's contention that he suffered a low back injury in this same incident, including Employer's notice defense.

19 SUSTAINED AND REMANDED

10 HANSEN, V.C.J., and JOPLIN, J., concur.

      . We use "NCI, INC.," the corporate name used by this respondent in its "Response to Petition for Review" and throughout the pleadings filed in the appellate record, instead of "MCI, INC., "as used within the style of the orders filed by the Workers' Compensation Court and the Court en bane.

      . Because the report of the independent medical examiner (IME) recommended surgery to Claimant's "lower back," the trial court, by letter dated February 24, 1999, acknowledged that the original order did not address the issue of causation and requested the IME to "consider whether the current need for surgery is as a result of this accident, some prior accident and injury which has progressively worsened, or a combination thereof."

      . The dissenting panel member explained that he "would remand to the Trial Judge for further hearing and findings to determine whether or not in the Court's discretion good cause was shown by the claimant that would excuse his failure to give proper statutory notice of injury to his LOW BACK. Otherwise, claim for LOW BACK injury should be DENIED. See 85 O.S. 24.2 (effective September 1, 1990)."


author: HANSEN, Viee-Chief Judge:

text:
    2000 OK CIV APP 81
    Frankie VALENTI, Petitioner, v. SPECIAL INDEMNITY FUND and The Workers' Compensation Court, Respondents.
    No. 93,909.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 19, 2000.

      Michael E. Utter, Oklahoma City, Oklahoma, For Petitioner.
    Georgiana Peterson, Oklahoma City, Oklahoma, For Respondents.
   OPINION

HANSEN, Viee-Chief Judge:

T1 In February and April of 1977, Claimant, Frankie Valenti, sustained on-the-job injuries. As a result of these injuries, he received 20% permanent partial disability to the body as a whole. On February 2, 1985 and February 8, 1985, he sustained other on-the-job injuries. As a result of these injuries, he received 41.7% permanent partial disability to the body as a whole.

T2 In December 1992, the trial court entered an order finding Claimant was permanently totally disabled as a result of the combination of these injuries. Claimant was awarded benefits of $163.00 per week to be paid by Respondent, Special Indemnity Fund (Fund). These benefits were paid to Claimant until 1999.

T3 In 1993, the Legislature amended 85 ©.§8.1998 Supp. 22 by adding subsection (13)(B) to provide that payment of permanent total benefits for persons incarcerated are to be paid to the Department of Corrections during the period of incarceration for the costs of incarceration. Beginning approximately February 1, 1999, the Fund began paying Claimant's benefits to the Department of Corrections.

T4 Claimant filed a Form 18, Request for Prehearing Conference, requesting a hearing on the issue of the method of payment of his benefits by the Fund. On November 1, 1999, the trial court entered an order denying Claimant's assertion that § 22(13)(B) does not apply in this case because his injuries predated the passage of that statute. Claimant seeks review of this order.

15 Claimant argues § 22(18)(b) does not apply to him because all of his injuries and the date of adjudication occurred before the enactment of subsection 18(b). He cites this Court to the rule of law which provides the right to worker's compensation benefits and the obligation to pay such benefits are vested and become fixed by law at the time of the injury. A claimant's right to compensation is determined by laws in force when the injury is sustained, notwithstanding subsequent amendments to the law. Lee Way Motor Freight, Inc., v. Wilson, 1980 OK 48, 609 P.2d 777. Section 22(13)(b) applies to Claimant if it is procedural, rather than substantive. Procedural statutes relate only to modes of procedure or remedies and do not create, enlarge, diminish or destroy contractual or vested rights. Phillips v. H.A. Marr Grocery Co., 1956 OK 104, 295 P.2d 765.

T6 By way of analogy, Claimant points out the method of payment of attorney fees is also determined by the date of injury. A statutory change in the method of payment cannot be applied retroactively. See Ailey v. D & B Construction Co., 1993 OK CIV APP 103, 855 P.2d 147.

T7 However, in the Ailey case, application of the statutory amendments would have affected the amount claimant would receive each period. The claimant had a substantive, vested right not to have his award decelerated by such amendments. The amendments were not merely procedural, affecting only a method of payments.

T8 Claimant's benefits are vested. He does not argue his benefits will be decelerated by application of § 22(18)(b). Just for the time he is incarcerated, these benefits will be directed to the Department of Corrections, rather than to Claimant, to pay the costs of his incarceration. The amount of his award is not changed. These costs of incarceration are a debt owed by Claimant to the Department of Corrections. 57 0.9$.1992 Supp. 549 (C). There is no substantive change to Claimant's vested rights. Therefore, the trial court's application of § 22(18)(b) is SUSTAINED.

19 Claimant's request for appeal-related attorney fees is denied.

110 ADAMS, J., and JOPLIN, J., concur.

      . On February 28, 2000, the Supreme Court denied Fund's motion to dismiss this appeal for "absence of an appealable order."

      . In the Ailey case, the trial court ordered benefits paid as of May 1992, setting the benefits at the maximum allowable on December 23, 1987, the date of last injurious exposure. The trial court order also directed attorney fees be paid periodically at the rate of 20% of each weekly check to the claimant. However, in 1987, in Chamberlain v. American Airlines, 1987 OK 62, 740 P.2d 717, the Supreme Court interpreted the Worker's Compensation Act to require that attorney fees awarded in permanent total disability cases be commuted to a lump sum and recover from a claimant at the rate of 10% from each periodic payment. Then in September 1992, 85 0.5.1992 Supp. 30 was amended to prohibit an award of lump sum attorney fees in permanent total disability cases and to mandate that legal fees be paid periodically at a rate of 20% of each weekly check to the claimant. It further mandated the right to any such attorney fee shall be vested at the time the award becomes final. This Court held the claimant had a substantive, vested right not to have payment of his award decelerated by the amendatory increase in the withholding rate to periodically pay attorney fees.

      . Portions of the Afley case were subsequently overruled by Special Indemnity Fund v. Weber, 1995 OK 43, 895 P.2d 292. The overruled portion of the Ailey opinion held that amendments to 85 0.$.1991 173, which increased the claimant's contribution to the Fund from 3% to 5%, reduced the amount of the claimant's award and was a substantive change in his vested rights. In Weber, the Supreme Court held that § 173, which imposes a particular rate of permanent disability benefits as contributions for the Fund, is a tax statute, and because the successful injured worker and the compensation insurer are taxpayers within the provisions of § 173, they have no vested rights to pay the tax pursuant to a particular tax scheme. Taxpayers must pay the tax pursuant to the law in effect at the time of the taxable event, not the rate in effect at the time of the compensable injury. The decision in the Weber case does not affect the applicability of Ailey, supra, to the present case.

      . Claimant refers this Court to 85 0.$.1999 Supp. 48, which provides that benefits shall not be assigned except as provided by the Worker's Compensation Act. However, Claimant never claims he assigned his benefits to the Department of Corrections. His benefits are only diverted to an account to pay his costs of incarceration during the time he is incarcerated.


author: DURHAM, Justice: HOWE, Chief Justice, WILKINS, Justice,

text:
    2000 UT 64
    PHONE DIRECTORIES CO., INC., Plaintiff and Appellant, v. Walter HENDERSON, Defendant and Appellee.
    No. 981728.
    Supreme Court of Utah.
    Aug. 15, 2000.

      R. Stephen Marshall, Steve K. Gordon, Salt Lake City, for plaintiff.
    Paul C. Drecksel, Mark R. Clements, Salt Lake City, for defendant.
   DURHAM, Justice:

{1 Phone Directories Company, Inc. ("PDC") sued Walter Henderson for breach of contract, breach of the implied covenant of good faith and fair dealing, and interference with economic relations. In response, Henderson filed a motion to dismiss for lack of personal jurisdiction or, alternatively, for failure to state a claim upon which relief could be granted. The trial court, finding that it lacked personal jurisdiction over Henderson, granted Henderson's motion to dismiss. We reverse and remand.

STANDARD OF REVIEW

T2 At issue in this appeal is the trial court's ruling on Henderson's pretrial motion to dismiss for lack of personal jurisdiction. Trial courts "may determine jurisdiction on affidavits alone, permit discovery, or hold an evidentiary hearing." Anderson v. American Soc'y of Plastic and Reconstructive Surgeons, 807 P.2d 825, 827 (Utah 1990) (approving procedures employed by federal trial courts when making pretrial determinations regarding personal jurisdiction as appropriate guidelines for Utah's trial courts). The record indicates that the trial court made its determination concerning personal jurisdiction based upon affidavits submitted by the parties. Thus, we review the trial court's decision for correctness. See Arguello v. Industrial Woodworking Mach. Co., 838 P.2d 1120, 1121 (Utah 1992) ("Where a pretrial jurisdictional decision has been made on documentary evidence only, an appeal from that decision presents only legal questions that are reviewed for correctness.").

FACTS

PDC is a Utah corporation with its principal place of business in Utah County, Utah. PDC is in the business of publishing telephone directories PDC employs sales representatives to contact businesses that may be interested in advertising in PDC's directories.

T4 Henderson is a resident of Big Bear, California. Since 1972, he has resided in California and has filed tax returns and paid state income tax solely in California.

T5 In the late summer or early fall of 1996, Henderson telephoned Mare Bingham, CEO of PDC, regarding the possibility of Henderson working as a PDC sales representative. During the conversation, Bing-ham found Henderson to be an attractive candidate for a PDC sales representative position and invited Henderson to come to PDC's offices in Orem, Utah. Henderson accepted Bingham's invitation and subsequently came to PDC's offices, where he met with Bingham and Linda Brunisholz, PDC's national sales manager, to discuss employment possibilities.

T6 Several days later, Henderson telephoned Brunisholz at the PDC offices to continue negotiating his possible employment. During that call, Brunisholz told Henderson that PDC would hire him as a sales representative to canvass the Big Bear, California area. Henderson ultimately accepted the position.

T7 As part of its normal hiring practice, PDC sent Henderson an Employee Representative Sales Agreement ("Agreement"), which Henderson was to sign as a condition of his employment. The Agreement contained a noncompetition clause and a forum selection/consent-to-jurisdiction clause. After Henderson expressed some concern with the seope of the noncompetition clause, Brun-isholz agreed to modify it in the form of an addendum to the Agreement. Prior to signing the Agreement and the addendum, Henderson requested that Brunisholz make further modifications, but Brunisholz refused. Shortly thereafter, Henderson sent the Agreement and addendum, both signed, to Brunisholz in Utah.

18 Upon receiving the signed Agreement and addendum, Brunisholz instructed another PDC employee to provide Henderson with confidential information concerning existing and potential clients, which Henderson was to use in making sales. Subsequently, relations between PDC and Henderson broke down, and PDC requested that Henderson return all of the materials provided him. Henderson complied with this request.

T9 In the late fall or early winter of 1997, PDC sales representatives in the Big Bear area informed Bingham that Henderson was contacting businesses in Big Bear in an attempt to have those businesses agree to advertise in a competing yellow-pages directory. In response, PDC instigated a lawsuit against Henderson in Utah, claiming breach of contract, breach of the implied covenant of good faith and fair dealing, and interference with economic relations. Henderson filed a motion to dismiss for lack of personal jurisdiction, or, in the alternative, for failure to state a claim upon which relief could be granted. PDC opposed the motion, arguing that the trial court had personal jurisdiction over Henderson pursuant to the forum selection/consent-to-jurisdiction clause contained in the fully executed Agreement.

110 - The trial - court - granted Henderson's motion to dismiss for lack of personal jurisdiction. In reaching this decision, the trial court reasoned that PDC must "make a prima facie showing of specific personal jurisdiction under the Utah long-arm statute[] and due process clause." It then found that Henderson's "only contact with this state was to sign a contract in California with a Utah company that choose [sic] Utah as the forum." Based upon this finding, the trial court concluded that it lacked personal jurisdiction over Henderson because "[this type of contact does not arise from any of the enumerated acts listed in the Utah long[-Jarm statute."

ANALYSIS

111 This case presents a question of first impression, namely, what standard should be used to determine personal jurisdiction where the underlying contract contains a forum selection/consent-to-Jjurisdiction clause. Generally,

[plersonal jurisdiction can be broken down into two categories. Either a court has general jurisdiction over a defendant or it has specific jurisdiction. General personal jurisdiction permits a court to exercise power over a defendant without regard to the subject of the claim asserted. For such jurisdiction to exist, the defendant must be conducting substantial and continuous local activity in the forum state. In contrast, specific personal jurisdiction gives a court power over a defendant only with respect to claims arising out of the particular activities of the defendant in the forum state. For such jurisdiction to exist, the defendant must have certain minimum local contacts.

Arguello v. Industrial Woodworking Mach. Co., 838 P.2d 1120, 1122 (Utah 1992). Because a forum selection/consent-to-jurisdiction clause does not create contacts with the forum state sufficient to establish general jurisdiction, we consider this court's jJurispru-dence regarding specific personal jurisdiction.

€12 Under Utah law, a three-part inquiry is used to determine specific personal jurisdiction:

(1) the defendant's acts or contacts must implicate Utah under the Utah long-arm statute; (2) a "nexus" must exist between the plaintiffs claims and the defendant's acts or contacts; and (8) application of the Utah long-arm statute must satisfy the requirements of federal due process.

Harnischfeger Eng'rs, Inc. v. Unifio Conveyor, Inc., 883 F.Supp. 608, 612-18 (D.Utah 1995); see also Utah Code Ann. § 78-27-24 (Supp.1999) ("Any person ... who ... does any of the following enumerated acts, submits himself ... to the jurisdiction of the courts of this state as to any claim arising out of or related to [such acts]."). Acts implicating Utah under Utah's long-arm statute include:

(1) the transaction of any business within this state;
(2) contracting to supply services or goods in this state;
(8) the causing of any injury within this state whether tortious or by breach of warranty;
(4) the ownership, use, or possession of any real estate situated in this state;
(5) contracting to insure any person, property, or risk located within this state at the time of contracting;
(6) with respect to actions of divoree, separate maintenance, or child support, having resided, in the marital relationship, within this state notwithstanding subsequent departure from the state; or the commission in this state of the act giving rise to the claim, so long as that act is not a mere omission, failure to act, or occurrence over which the defendant had no control; or
(7) the commission of sexual intercourse within this state which gives rise to a paternity suit under Title 78, Chapter 45a, to determine paternity for the purpose of establishing responsibility for child support.

Id.

13 The trial court in this case analyzed whether it had personal jurisdiction over Henderson pursuant to the Harnischfeger three-part inquiry stated above. In particular, the trial court considered whether Henderson's contacts with Utah satisfied subsection (1), (2), or (8) of section 78-27-24. Ultimately, it concluded that Henderson's contacts did not satisfy these subsections and granted Henderson's motion to dismiss for lack of personal jurisdiction. While the trial court raised the question of whether a forum selection/consent-to-jurisdiction clause, by itself, could confer personal jurisdiction over a defendant, it did not answer this question, instead analyzing the personal jurisdiction question under the traditional inquiry.

1 14 Although use of the Harmischfeger three-part inquiry to determine personal jurisdiction is generally appropriate, we conclude that a different inquiry should be made in cases involving contractual forum selection/consent-to-jurisdiction clauses. In particular, we hold that, while a forum selection/consent-to-jurisdiction clause by itself is not sufficient to confer personal jurisdiction over a defendant as a matter of law, such clauses do create a presumption in favor of jurisdiction and will be upheld as fair and reasonable so long as there is a rational nexus between the forum selected and/or consented to, and either the parties to the contract or the transactions that are the subject matter of the contract. Although the rational nexus element does require some connection between Utah and either the parties to or the actions contemplated by the contract, it need not rise to the level required under section 78-27-24.

115 This partial departure from the traditional three-part inquiry when the parties have contractually selected or consented to a forum has two bases. First, people are free to waive the requirement that a court must have personal jurisdiction over them before that court can adjudicate a case involving them. See, e.g., National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16, 84 S.Ct. 411, 11 L.Ed.2d 854 (1964) (stating that "it is settled ... that parties to a contract may agree in advance to submit to the jurisdiction of a given court"); Petrowski v. Hawkeye-Sec. Ins. Co., 350 U.S. 495, 495-96, 76 S.Ct. 490, 100 L.Ed. 689 (1956) (holding that parties who stipulated to personal jurisdiction waived any right to assert a lack of personal jurisdiction); Curtis v. Curtis, 789 P.2d 717, 726 (Utah Ct.App.1990) (stating that "defects in personal jurisdiction can be waived") (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1850 (1969)). Second, people are generally free to bind themselves pursuant to any contract, barring such things as illegality of subject matter or legal incapacity. Seq, e.g., Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51 S.Ct. 476, 75 L.Ed. 1112 (1981) ("The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts."); Frailey v. McGarry, 116 Utah 504, 211 P.2d 840, 847 (Utah 1949) (stating that "the law favors the right of men of full age and competent understanding to contract freely"). When combined, these two concepts support the conclusion that people can contractually agree to submit to the jurisdiction of a particular court, even if that court might not have independent personal jurisdiction over them under the Harnischfeger three-part inquiry. The potential risks of expanded jurisdiction-particularly the waste of judicial resources-are addressed by the requirement of a rational nexus between this state and either the parties to or the subject matter of the contract. Moreover, as we stated in Prows, the traditional defenses allowing one to avoid an unfair or unreasonable contract, such as duress and fraud, are available to parties litigating the validity of a forum. See Prows, 868 P.2d at 812 n. 5.

T16 Applying this standard to the present case, we conclude that the forum selection/consent-to-jurisdiction clause in the parties' contract, specifying Utah as the appropriate jurisdiction to resolve claims under the contract, creates a rebuttable presumption that the trial court has personal jurisdiction over Henderson. In addition, the record establishes the necessary rational nexus: (1) PDC is a Utah-based company; (2) PDC has its principal place of business in Utah; (8) Henderson telephoned PDC's CEO in Utah requesting employment; (4) Henderson visited PDC's offices in Utah to negotiate the terms of his employment; (5) Henderson telephoned PDC's offices in Utah to continue negotiating for employment; - and (6) Henderson mailed the Agreement and addendum to PDC's Utah offices.

{17 Thus, we hold that the forum selection/consent-to-jurisdiction clause is fair and reasonable, and that the trial court has personal jurisdiction over Henderson. We therefore reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion. Moreover, in light of the effect our decision may have on the trial court's rulings on PDC's rule 56(f) motion and PDC's motion to amend its complaint, we vacate those rulings.

[ 18 Judge BENCH concurs in Justice DURHAM's opinion.

{ 19 Having disqualified himself, Justice DURRANT did not participate herein; Court of Appeals Judge, RUSSELL W. BENCH, sat.

HOWE, Chief Justice,

concurring in the result:

20 I concur in the result. The issue in this case as to the enforceability of a forum selection clause was decided by this court in Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Utah 1998). In that case, we adopted section 80 of the Second Restate ment of Conflict of Laws, which provides that "the parties' agreement as to the place of the action will be given effect unless it is unfair or unreasonable." We stated that under this section, a plaintiff who brings an action in violation of a choice of forum provision bears the burden of proving that enforcing the clause is unfair or unreasonable. In that case, the forum selection clause provided that "all legal proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting in the borough of Manhattan, in the city of New York." We held that that provision was unfair and unreasonable because none of the parties had any connection with New York. A Utah plaintiff was bringing suit against a Utah defendant and a Canadian defendant. The agreement sued upon was signed in Utah, was to be performed in Utah, and the alleged breach and tortious conduct occurred here. In other words, all relevant contacts occurred in Utah, and as a consequence, we held Utah was the only state with an interest in the action.

{21 In the instant case, I would enforce the forum selection clause because it has not been shown to be unfair or unreasonable. As set out in the opinion of Justice Durham, the parties and the contract have a significant nexus to Utah.

I 22 I concur that the consent to jurisdiction clause in this case is enforceable for the reasons stated in Justice Durham's opinion.

WILKINS, Justice,

concurring in the result:

1 23 I concur in the result reached by my colleagues. However, I would reverse the trial court on the basis of jurisdiction afforded by application of the Utah long-arm statute alone. Analysis of the forum selection/consent-to-jurisdiction language of the contract between the parties is both unnecessary and, in my opinion, potentially misleading for other litigants and courts.

24 The relevant portion of Utah's long-arm statute provides:

Any person ... whether or not a citizen or resident of this state, who in person or through an agent does any of the following enumerated acts, submits himself ... to the jurisdiction of the courts of this state as to any claim arising from:
(1) the transaction of any business within this state....

Utah Code Ann. § 78-27-24 (1996).

125 We have repeatedly held that the long-arm statute must be "'extended to the fullest extent allowed by due process of law." Starways, Inc. v. Curry, 1999 UT 50 ¶ 7, 980 P.2d 204 (quoting Symergetics v. Marathon Ranching Co., 701 P.2d 1106, 1110 (Utah 1985)). The undisputed facts here support such an application. - Henderson called PDC at PDC's Utah offices to initiate negotiation of the contract. He then visited PDC's Utah office to negotiate the terms of the contract, called PDC's Utah offices again to complete the negotiations, and sent the executed agreement to PDC in Utah. The suit arises from a dispute over the meaning and terms of the contract resulting from these negotiations. In my opinion, these contacts are enough to constitute the "transaction of any business within this state" as contemplated by our long-arm statute. All that remains to be evaluated is whether holding Henderson subject to Utah's jurisdiction accords with due process. i

126 Due process requires that the defendant has had "minimum contacts with [Utah] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citation omitted). We look to the " 'relationship of the defendant, the forum, and the litigation to each other"" Parry v. Ernst Home Cir. Corp., 779 P.2d 659, 662 (Utah 1989) (quoting Synergetics, 701 P.2d at 1110). Here, the controversy arises directly from the contract negotiations and the terms of the agreement created by Henderson's acts in Utah. I cannot see how the interests of fair play and substantial justice are compromised by requiring the defense of the action in Utah courts.

T27 Standing alone, Henderson's contacts with PDC in Utah regarding the contract giving rise to the litigation are sufficient to confer personal jurisdiction over Henderson. Discussion of a presumption relating to the forum selection/consent-to-jurisdiction clause adds nothing in this particular case. In fact, discussing it in connection with this case may give the false impression that somehow it does make a difference. As a result, I would save evaluation of the legal impact of the forum - selection/consent-to-jurisdiction contractual clause for a case when our consideration will have real consequences and be less likely to muddy the waters.

128 I would reverse and remand to the trial court on the basis of jurisdiction premised on simple application of the long-arm statute.

1 29 Associate Chief Justice RUSSON concurs in Justice WILKINS' opinion.

      . The facts are drawn from the trial court's record, including the unverified complaint and the affidavits filed by Henderson and PDC in connection with Henderson's motion to dismiss. Because we review the trial court's decision for correctness, we follow the same procedures in determining whether the trial court had personal jurisdiction based only upon documentary evidence. Therefore, "[the plaintiff's factual allegations are accepted as true unless specifically controverted by the defendant's affidavits or by depositions, but any disputes in the documentary evidence are resolved in the plaintiff's favor." Anderson, 807 P.2d at 827.

      . The forum clause stated: selection/consent-to-jurisdiction

        This agreement and any disputes relating thereto shall be construed under the laws of the State of Utah, and if and where any conflict of law arises, the laws of the State of Utah shall apply and shall be binding. Sales Representative agrees that he will submit any and all disputes he may have with Company to binding arbitration before a licensed alternative dispute resolution agency selected of Company's sole discretion, or in the alternative and solely at Company's discretion, shall submit to the jurisdiction and authority of the applicable Court of Law in the State of Utah.

      . PDC also filed a rule 56(f) motion and a motion to amend its complaint. However, the trial court denied those motions, stating that neither the additional discovery requested by PDC, nor the amended complaint, would provide the court with personal jurisdiction over Henderson.

      . - The trial court did not reach Henderson's argument that PDC's claim should be dismissed for failing to state a claim upon which relief could be granted. On appeal, Henderson, in essence, reasserts this argument stating that the trial court's dismissal can be affirmed on the alternative ground that PDC's claims are barred as a matter of law by applicable California law. Because the trial court did not reach this issue, affirming on this alternate ground would require us to examine, for the first time in this case, which state's law should govern. We decline to do so, and direct the trial court to address this issue should it arise on remand.

      . See Utah Code Ann. § 78-27-24 (Supp.1999).

      . Because Anderson requires'trial courts to resolve all disputes in the documentary evidence in the plaintiff's favor when determining personal jurisdiction, see Anderson, 807 P.2d at 827, the trial court assumed that it had granted PDC's motion to amend its complaint and went on to analyze whether it had personal jurisdiction over the claims raised therein under Utah's long-arm statute. Ultimately, the court concluded that it lacked personal jurisdiction over these additional claims.

      . We note that in Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Utah 1993), this court addressed the validity of a contractual forum selection/consent-to-jurisdiction _ clause. Although we ultimately concluded that enforcing the particular clause would be unjust because the plaintiff would practically be denied his day in court, see id. at 813, we adopted section 80 of the Second Restatement of Conflict of Laws which states: " 'The parties' agreement as to the place of the action will be given effect unless it is unfair or unreasonable,'" id. at 812 (quoting
      Restatement (Second) of Conflict of Laws § 80 (Supp.1989)).
      In the present case, we must decide what the personal jurisdiction standard is in cases involving forum - selection/ - consent-to-jurisdiction clauses. To remain consistent with Prows, the standard we announce today will insure that enforcement of such clauses will not be unfair or unreasonable. As such, this decision will fully comport with the general principle announced in Prows, and will offer specific guidance as to the particular issue raised in this case.

      . Because both PDC and Henderson frame the personal jurisdiction issue in terms of whether the forum selection/consent-to-jurisdiction clause confers personal jurisdiction over Henderson, we do not analyze whether Henderson's contacts with Utah satisfy the Harnischfeger three-part test. Instead, we address the issue as raised by the parties, and focus upon ascertaining the standard that should be applied to determine whether personal jurisdiction exists when a contract containing a forum selection/consent-to-jurisdiction clause is involved.

      . In this respect, the United States Supreme Court has noted that
      because the personal jurisdiction requirement is a waivable right, there are a "variety of legal arrangements" by which a litigant may give "express or implied consent to the personal jurisdiction of the court." For example, particularly in the commercial context, parties frequently stipulate in advance to submit their controversies for resolution within a particular jurisdiction. Where such forum-selection provisions have been obtained through "freely negotiated" agreements and are not "unreasonable and unjust," their enforcement does not offend due process.
      Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n. 14, 105 S.Ct. 2174, 85 LEd.2d 528 (1985) (citations omitted).


author: DURHAM, Justice:

text:
    2000 UT 65
    Christian Dan RICHARDSON and Jessica Richardson, By and Through their father and general guardian, Dan L. RICHARDSON, Plaintiffs and Appellants, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION, a corporation; and Toyota Motor Sales U.S.A., Inc., a corporation, Defendants and Appellees.
    No. 990253.
    Supreme Court of Utah.
    Aug. 15, 2000.

      Peter C. Collins, Kevin J. Kurumada, Salt Lake City, for plaintiffs.
    Glenn C. Hanni, Kristin A. VanOrman, Dawn M. Call, H. James Clegg, Judith D. Wolferts, Salt Lake City, for defendants.
   DURHAM, Justice:

{1 Pursuant to rule 41 of the Utah Rules of Appellate Procedure, the United States Court of Appeals for the Tenth Circuit certified the following question to us for decision:

Under Utah law, may plaintiffs who have entered into a judicially approved settlement with multiple defendants after a trial in which a jury allocated 100% of fault among the parties pursuant to the Utah comparative fault scheme, Utah Code Ann. §§ 78-27-37 to -48, maintain a subsequent tort action for the same injuries, arising out of the same transaction or occurrence, against additional known defendants who were not parties to the first action?

T2 The question as framed is somewhat ambiguous in failing to emphasize that the first trial (with its jury allocation of fault) resulted not in a judgment, but in a settlement between the parties With that point underscored, we answer the question in the affirmative for the reasons set forth below.

BACKGROUND

T3 On July 3, 1989, a 1978 Navistar International truck parked on the shoulder of Interstate 15 was struck in the rear by a 1978 Toyota Land Cruiser driven by Karen Andrews, the mother of Christian and Jessica Andrews ("plaintiffs"), after she swerved to avoid a vehicle that had veered into her lane. The hood of the Toyota slid under the Navistar truck and its windshield collided with the rear bed of the Navistar truck. As a result, Andrews and two other family members, who were passengers in the front seat of the Toyota, were killed. Plaintiffs, who were passengers in the rear compartment of the Toyota, were injured. - Specifically, Christian Andrews suffered a permanent brain injury, and Jessica Andrews suffered broken bones, abrasions, and contusions.

T4 Following the accident, the plaintiffs filed a negligence action in the Fourth Judicial District Court of Utah against (1) the owner, the driver, and the mechanic of the truck that swerved into Andrew's lane; (2) the driver and the owner of the Navistar truck; (3) the employer of the driver of the Navistar truck; and (4) the Utah Department of Transportation. Prior to trial, the plaintiffs settled with several of the defendants.

5 Pursuant to the trial court's order, the trial against the remaining defendants was bifurcated, i.e., the liability issues were to be tried first, and the damages issues were to be tried second. At the close of the liability phase of the trial, a special verdict form was submitted to the jury asking them to determine (1) whether any of the defendants originally named in the action were negligent; (2) if so, whether such negligence was a proximate cause of the accident; and (8) what percentage of the fault for causing the accident should be allocated to those defendants whose negligence proximately caused the accident. In addition, the special verdict form directed the jury that the percentages of fault allocated to the defendants determined to be proximate causes of the accident should total 100%.

T6 The jury returned a verdict allocating 15% of the fault to the plaintiffs' mother, and the remaining 85% of the fault among the defendants originally named in the action who proximately caused the accident. The trial court issued an order and nonfinal judgment on the special verdict of the jury awarding a partial, nonfinal judgment in favor of the plaintiffs in the amount of 28% of the total amount of damages which was to be fixed by a jury at a later time. Following this order, the plaintiffs settled with the defendants against whom they had gone to trial, and the trial court dismissed the plaintiffs' action with prejudice. Thus, the issue of damages was never tried at the trial court, nor was a final judgment entered.

T7 On August 15, 1995, the plaintiffs filed an action against Navistar International Transportation Corporation and Toyota Motor Sales U.S.A., Inc. ("defendants") in the United States District Court for the District of Utah. Based on theories of strict product liability and negligence, the plaintiffs sought to recover for injuries and/or enhanced and exacerbated injuries beyond, over, and above the injuries, if any, which they would have suffered from the July 3, 1989 motor vehicle collision in the absence of defendants' defective product and/or negligence. The defendants filed a motion for summary judgment asserting that the plaintiffs were collaterally estopped from seeking an allocation of fault since that issue had previously been litigated and fault totaling 100% had been allocated. The federal district court granted the defendants' motion for summary judgment and dismissed the case with prejudice. Plaintiffs filed a notice of appeal to the Tenth Circuit Court of Appeals. After full briefing and oral arguments, the Tenth Cireuit Court of Appeals took the matter under advisement and certified the question at issue to this court.

ANALYSIS

T8 The phrasing of the question certified to us by the U.S. Court of Appeals has, we believe, obscured the factual context in which it arises and therefore caused some distortion in the arguments made to us. Although, as the question and the record reflect, there was a trial in Utah District Court in which a jury returned a verdict allocating "100% of fault among the parties," that verdict was never reduced to a final judgment. Instead, the state court proceedings were truncated by a settlement between the parties and dismissal of the case. Thus, the parties reached a settlement before the state court entered a judgment allocating fault pursuant to the Liability Reform Act, and the jury's verdict on allocation had no binding or pre-clusive effect on any party or court.

19 The case before the federal court is therefore simply one where the plaintiffs are pursuing other potential tortfeasors who were not parties to the settlement agreement with the defendants in the state case. Parties may of course settle with some defendants without jeopardizing their right to seek redress from others. Our judgment on the effect of fully litigated (e., to final judgment) claims against some but not all defendants under the Liability Reform Act in a case like this must await another day. We therefore answer the certified question in the affirmative, emphasizing again that we view the state case as having been settled, not litigated to judgment.

1 10 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURRANT, and Justice WILKINS concur in Justice DURHAM's opinion.

      1. This portion of the Code is referred to as the Liability Reform Act.


text:
    2000 UT 67
    STATE of Utah, By and Through the UTAH AIR QUALITY BOARD, Plaintiff and Appellee, v. The TRUMAN MORTENSEN FAMILY TRUST and Roxane Jensen-Daley, Defendants and Appellants.
    No. 990088.
    Supreme Court of Utah.
    Aug. 18, 2000.

      Jan Graham, Att'y Gen., MM. Hubbell, Asst. Att'y Gen., Salt Lake City, for plaintiff.
    Joseph W. Rohan, Paul M. Halliday, Jr., Salt Lake City, for defendant.
   DURHAM, Justice:

T1 This is an appeal by the defendants, the Truman Mortensen Family Trust and Roxanne Jensen, alleging that the trial court erred in imposing a $23,000 fine against them for violating the state's asbestos regulations. We affirm.

BACKGROUND

T2 Roxanne Jensen, also known as Roxanne Jensen-Daley (Ms. Jensen), is the trustee, contact person, and party responsible for administering the Truman Mortensen Family Trust, which owns various properties located in Utah and Idaho. At the time of the events giving rise to this lawsuit, one such property managed by Ms. Jensen was the Truman apartment building, located at 290 East Truman Avenue, Salt Lake City, Utah. This building contains approximately nine units, all accessible via a central hallway and stairway.

T 3 On January 7, 1997, the Environmental Health Division of the Salt Lake County Health Department (Health Department) inspected the building and found various violations of Health Department standards. Before leaving, the health inspectors took a sample of the textured ceiling located over the building's central hallway for testing. Analysis showed that the ceiling contained 3% Chrysolite, a material containing carcinogenic asbestos, and the Health Department so informed Ms. Jensen.

[ 4 On January 16, 1997, Ms. Jensen hired two men to "repair" the ceiling of the central stairway and hallway. Later that day, Bowen Call (Inspector Call), an inspector for the Utah State Division of Air Quality (DAQ), arrived on the scene and found the workers removing 600 to 800 square feet of dry and brittle asbestos material from the central hallway ceiling. Dust from the ceiling was visible in the air and piled several inches deep on the floor. Inspector Call confronted the men and they responded that Ms. Jensen had instructed them to remove the ceiling. Although the workers were engaged in the removal of material containing asbestos, they had not been trained in proper asbestos handling techniques, used proper respiratory and safety equipment, taken precautions to control the asbestos dust or fibers, or evacuated the building.

T5 Five days later, Inspector Call returned to the site and again found that asbestos had been improperly handled. In particular, the asbestos had been partially scraped off the ceiling but had not been completely removed. Ms. Jensen was present this time, and Inspector Call questioned her about the disposal of the asbestos. She responded that she did not know where the majority of the asbestos had been taken or how it had been disposed of. Inspector Call gave her verbal instructions concerning the danger of asbestos and told her that it could not be cleaned up with a vacuum cleaner. He told her that a certified contractor using specialty equipment had to be hired to remove and dispose of the dangerous substance. Inspector Call then left the scene and returned to his office at DAQ, where he received a phone call from a tenant at the Truman apartment building stating that Ms. Jensen had begun to clean up the asbestos with her vacuum cleaner.

6 On February 18, 1997, the DAQ Board issued the Truman Mortensen Family Trust and Ms. Jensen a "Notice of Violation and Order to Comply or Cease and Desist" (Notice and Order) for violations of the asbestos regulations found in R307-1-10, R307-1-2.1, and R307-1-8.61 of the Utah Administrative Code. The Notice and Order was a five page document including a cover-page stating that it was being issued by DAQ. Specific asbestos violations were outlined in the document, including Ms. Jensen's failure to (1) submit written notification of asbestos removal, (2) use required work practices, (8) collect, package, transport, and dispose of asbestos containing materials as required, (4) use required asbestos removal and disposal techniques, and (5) ensure site supervisors and workers had received asbestos training. Finally, the document detailed that it was to become effective immediately, that failure to comply could result in penalties, and that it would become final within thirty days of receipt unless a hearing was requested in writing.

17 DAQ attempted to inform Ms. Jensen of the Notice and Order by mailing her a copy via certified mail. Specifically, DAQ placed the Notice and Order in the mail on February 13, 1997, addressing it to the address Ms. Jensen had given Inspector Call. The Notice and Order was returned as undeliverable. DAQ continued its effort to notify Ms. Jensen by re-mailing the Notice and Order four or five times, and also made several attempts to deliver it personally to Ms. Jensen's house. Finally, Inspector Call found a new address for Ms. Jensen and re-mailed the Notice and Order to her via certified mail. Ms. Jensen acknowledged receipt on April 9, 1997.

8 On April 6, 1997, three days before she received the Notice and Order, Ms. Jensen had sent a letter to Sharleen Hansen of the Occupational Safety and Health Division of the State of Utah Health Department (OSHD) in response to a notification of penalty that she received from OSHD on March 10, 1997. In the letter, she requested instructions on how to dispose of the materials, apologized for having caused the problem, and expressed her wish that the penalty be reduced. Ms. Jensen did not mentfon or request a hearing in the letter. Ms. Jensen alleges that when she received the Notice and Order from DAQ on April 9, 1997, she mistakenly believed that DAQ was the same ageney as OSHD, and thus she was not required to take any further action regarding the Notice and Order because her previous letter served as an effective response.

19 In October, 1997, the State filed a complaint in the Third District Court seeking to enforce the Notice and Order, which the State alleged had become final because of Ms. Jensen's failure to respond. In March 1998, the State moved for summary judgment. Ms. Jensen opposed the motion on the grounds that (1) she had requested a hearing in her April 6, 1997, letter, sent to the wrong agency, (2) the notice given by DAQ was deficient because it did not adequately disclose the proper procedures for responding, and (8) she had subsequently complied with the Notice and Order and thereby was entitled to defend against the imposition of a fine under Utah Code Ann. § 63-46b-19(8)(c)-(d) (1997).

T 10 The trial court rejected Ms. Jensen's arguments and granted the State summary judgment, ruling that Ms. Jensen failed to respond to the Notice and Order properly delivered by the State. However, the trial court declined to grant the State's claim for $41,000 in penalties and fees as a matter of summary judgment, and chose instead to give the parties an opportunity to negotiate the amount of the penalty.

[ 11 The parties met to discuss the amount of the fine in October 1998. The State offered to lower the fine to $23,000, and stated that a further reduction based on Ms. Jensen's ability to pay might be available, provided she could document her lack of resources by producing tax returns for the previous three years. Ms. Jensen refused to produce such records, and responded with a counteroffer involving no monetary penalty, but rather a promise that she would not purchase or manage any more apartment buildings. Ultimately, because no compromise was reached, the trial court conducted an evidentiary hearing to determine the appropriate penalty.

T 12 At the hearing, the State claimed that a penalty of $28,000 was fair, given that Ms. Jensen had exposed a number of individuals to asbestos and that the asbestos had still not been properly removed from her building. Ms. Jensen argued that the fine was excessive considering her disability and lack of funds. Also, she asserted that the fine was impermissibly excessive because it was nearly five times the amount of equity she owned in the building.

113 The court rejected Ms. Jensen's testimony on the ground that it lacked credibility and assessed a penalty of $23,000. The court also instructed Ms. Jensen that if she wanted further consideration of a reduction of the fine, all she had to do was produce her tax documents. Ms. Jensen refused to produce her financial statements, choosing instead to appeal the decision.

ANALYSIS

114 Ms. Jensen raises two issues on appeal, which we will discuss sequentially: (1) the trial court's grant of summary judgment; and (2) the amount of the penalty assessed.

I. SUMMARY JUDGMENT

A. Adequacy of the Notice

115 Ms. Jensen argues that summary judgment was improperly granted because there remain disputed facts regarding the notice she received from DAQ. Specifically, she argues that there are disputed facts involving (1) the clarity of the Notice and Order issued by DAQ in light of the fact that, as her brief asserts, she "was besieged by a myriad of officials from various State agencies, local and county government and the Federal government," and (2) the adequacy of her letter to OSHD as a response to the Notice and Order.

116 Ms. Jensen correctly points out that summary judgment is only granted if no genuine issues of material fact exist and if the moving party is entitled to a judgment as a matter of law. See Utah R. Civ. P. 56(c); see also Glencore, Ltd. v. Ince, 972 P.2d 376, 379 (Utah 1998). However, we disagree with her assertion that there are genuine issues of material fact regarding the notice given to her.

117 First, DAQ did all that it was required to do in notifying Ms. Jensen of the violations. According to the standard set forth in Anderson v. Public Service Commission of Utah, 889 P.2d 822 (Utah 1992), an administrative agency's obligation to provide proper notice is satisfied by sending the doe-uments via certified mail. See id. at 826. DAQ is not required to ensure that persons read the documents or have actual notice of their existence or contents. See id. DAQ met the legal requirement by placing the document in the mail on February 13, 1997, directed to an address Ms. Jensen had provided to Inspector Call. This document was returned by the post office, and then DAQ exceeded its legal obligations with its continued attempts to mail and hand-deliver to Ms. Jensen a copy of the Notice and Order. Because of these extra efforts, Ms. Jensen actually received a copy of the Notice and Order on April 9, 1997. DAQ cannot be charged with inadequate notice if Ms. Jensen failed to read or fully understand its contents.

1118 Second, contrary to Ms. Jensen's assertions, we believe that the words of the Notice and Order were not ambiguous or inadequate to inform her of the nature of the proceedings. The Notice and Order was in fact clear and easily understandable. For example, the document unequivocally stated that it was "effective immediately and shall become final unless, within thirty (80) days of receipt ... [defendant] requests, in writing, a hearing" and that a "civil penalty of up to $10,000 per day for each day" that it was violated could be imposed. We agree with the trial court's conclusion that the Notice and Order received by the defendant was clear and complete in its information and instructions.

119 Finally, we disagree with Ms. Jensen's contention that her letter to the OSHD served as a response to the Notice and Order. It is manifestly impossible for a letter written three days before the Notice and Order was even issued and sent to a completely different department to serve as a response to the Notice and Order issued by DAQ. Moreover, even if we were to credit Ms. Jensen's characterization of the letter as a response to the asbestos problem at her apartment building, we note that her letter to OSHD did not request a hearing, nor did it attempt to contest the allegations of the Notice and Order in any way.

120 Thus, we agree with the trial court and find that no genuine issues of material fact exist relating to the Notice and Order given to Ms. Jensen that would preclude the granting of summary judgment for the State.

B. Defenses Under Utah Administrative Procedures Act

$21 Ms. Jensen also contends that the grant of summary judgment improperly denied her the opportunity to assert defenses outlined in the Utah Administrative Procedures Act (UAPA) found in Utah Code Ann. § 63-46b-19(3). However, before the provisions of the UAPA are activated, the proceedings and orders of the administrative agency in question must have been validly challenged. Section 68-46b-1(2)(k) states that "[this chapter does not govern ... the issuance of any notice of violation or order under ... Title 19, Chapter 2, Air Conservation Act ... except that this chapter governs any agency action commenced by any person authorized by law to contest the validity or correctness of the notice or order." In other words, the protections of the UAPA, including those afforded in section 63-46b-19(8), do not become operative until the person "contest[s] the validity or correctness of the notice or order" by requesting a hearing on the matter.

122 Ms. Jensen did not request a hearing or in any way contest the validity of the Notice and Order within the appropriate time period. The warnings on the Notice and Order stated that she had thirty days to respond or it would become final, and she did not respond. Thus, the Notice and Order became final and Ms. Jensen never acquired the right to raise any defenses under section 63-46b-19(8). See Career Serv. Review Bd. v. Utah Dep't of Corrections, 942 P.2d 983, 938-89 (Utah 1997) (holding that when administrative agency's order has become final, defendant cannot assert section defenses or argue that issues surrounding finalized order are still in dispute).

T23 Therefore, the trial court's grant of summary judgment did not deny Ms. Jensen the right to assert valid defenses under the UAPA.

II. AMOUNT OF THE PENALTY

1 24 After finding that her actions warranted punishment, the trial court imposed a fine of $23,000 on Ms. Jensen. While conceding that "$23,000 was a lot of money," the trial court imposed this amount because it concluded that Ms. Jensen's conduct in dealing with asbestos in the apartment building warranted it. Ms. Jensen challenges the amount of this fine on the grounds that the trial court erred in its application of the rules governing civil penalties and that the fine is impermissibly excessive under both the Utah and United States Constitutions.

A. The Trial Court's Application of the Rules for Imposing Penalties

125 Rules 307-180-1, -2, and -3 of the Utah Administrative Code outline both the procedures for implementing fines for violating the asbestos laws and the extent of such fines. These rules are patterned after the national standards set by the Federal Environmental Protection Agency. The purpose of the rules is to establish reasonable and appropriate penalties for violations of the asbestos laws based on the nature and extent of the violations, the economic benefit of noncompliance, and adjustments for specific cireumstances. According to rule 307-180-2 of the Utah Administrative Code, each alleged regulatory violation is classified by DAQ as either type A, B, C, or D, types A and B being the most egregious and carrying the greatest fines, while types C and D are the least serious and usually carry no fines. See Utah Admin. Code R307-180-2(1) to (4). Here, Ms. Jensen was cited for five specific violations, two of which were considered type A, and the other three type B.

126 Ms. Jensen asserts that the cited violations should have been characterized as no more serious than type C violations, but gives no reasons to support this conclusion. There was no evidence in the record that DAQ or its inspectors wrongly or mistakenly classified the asbestos situation at the Truman apartments. In addition, considering the proven danger and carcinogenic effects of asbestos, we agree with the trial court that conduct that results in asbestos dust so concentrated that it is visible in the air and piled several inches high on the floor of an occupied apartment building is serious and egregious behavior worthy of stiff environmental sanctions.

127 Ms. Jensen also argues that the trial court failed to consider mitigating factors listed in rule 307-130-3 that would reduce or suspend the penalty. Specifically, she asserts that the trial court failed to credit her for good faith efforts to comply with the regulations, or give her some leeway because of her mental disability. See Utah Admin. Code R307-130-8(1). Yet, according to Inspector Call's testimony at the penalty hearing, the asbestos had never been properly cleaned up and removed from the building. There can be no credit for good faith efforts to comply if there is no evidence that Ms. Jensen ever took steps to remedy the situation.

%28 Ms. Jensen asserted before the trial court that her mental disability {(on which no information appears in the ree-ord beyond the fact that she is 100% disabled for Social Security purposes) should be a factor in mitigation. Although her condition may warrant sympathy, it cannot in this case serve as a defense to the imposition of sance-tions. We agree with the trial court's assessment: .

Anyone that has the sophistication to buy and sell two $300,000 apartment buildings has to have enough savvy to know who they are dealing with and when they are dealing with it and what its all about.... It is obvious ... that she's been involved in this Truman Mortensen Family Trust as a trustee. Certainly, she must have some competent ability to manage properties. Maybe it's something that she's doing on her own and keeping it out of her own personal ownership .... I don't know anything about this trust, but it just seems ... that you don't buy and sell and manage apartment buildings without some ability to deal with people that understand what's going on and making sure that you have the right licenses and whatever else.

Also, the public policy implications of protecting tenants from the dangers of asbestos-filled units, no matter what the limitations of their landlords may be, require us to hold Ms. Jensen accountable for her actions. Landlords have serious responsibilities to their tenants, including the duty to ensure that the housing rented is reasonably safe and suitable for the intended use. See Stephenson v. Warner, 581 P.2d 567, 568 (Utah 1978) (holding that "[i]t is not to be doubted that a landlord is bound by the usual standard of exercising ordinary prudence and care to see that premises he leases are reasonably safe and suitable for intended uses"). If Ms. Jensen's disability prevents her from adequately performing her role as a landlord, she should perhaps discontinue her activities in that enterprise. She may not, however, be exeused from the legal requirements necessary to protect the health and safety of her tenants, or from the sanctions imposed for her failure to do so.

129 Finally, Ms. Jensen asserts that the trial court failed to consider the mitigating factor of her lack of financial resources. However, Ms. Jensen has not provided the necessary tax records and financial documentation to demonstrate any such lack. The State has consistently shown a willingness to work with Ms. Jensen, and in fact has already reduced the fine from $41,000 to $28,-000. The State has also declared it is willing to reduce the fine further if Ms. Jensen's financial records demonstrate an inability to pay.

130 The record shows that Ms. Jensen was given several opportunities to produce the relevant documents. For example, the State requested the documents before the penalty hearing. (Inspector Call told the court that the request "didn't seem like it was received very well.") At the hearing, the trial judge instructed Ms. Jensen that if she was attempting to argue that she could not pay the fine, she had to disclose her financial information. Even as late as March 1999, nearly six months after the hearing, the State requested "information concerning the Truman-Mortensen [sic] Family Trust, the Mortensen-Jensen [sic] Family Trust, the 1081 Exchanges, the Malad, Idaho property and other information." We acknowledge that Ms. Jensen was not required to disclose such information. However, because she withheld it, she is now estopped from arguing that her lack of financial resources should have been considered when setting the amount of the penalty.

B. Claim that the Fine Violates the Excessive Fines Clause

131 The Eighth Amendment to the United States Constitution guarantees that "IeJxcessive bail shall not be required, nor excessive fines imposed, nor eruel and unusual punishments inflicted." A nearly identical provision is found in Article 1, section 9 of the Utah Constitution: "Excessive bail shall not be required; excessive fines shall not be imposed; nor cruel and unusual punishments be inflicted." The purpose of such provisions is to prevent the government from abusing its power to punish by the imposition of harsh and unfair payments. See Browning, Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266-67, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). Ms. Jensen asserts that the imposed fine is "clearly excessive" in violation of these protections.

132 Although asserting that the fine is excessive under both state and federal law, Ms. Jensen failed to adequately brief or discuss the issue under the Utah Constitution. Accordingly, we will address the constitutional excessiveness of the fine under federal law.

1 33 We conclude that the proper analysis as to whether a fine violates the Excessive Fines Clause is outlined in United States v. Bajakajian, 524 U.S. 821, 118 S.Ct. 2028, 141 L Ed.2d 314 (1998) After establishing the principles governing the Excessive Fines Clause, the Bojakagjian court ruled that forfeiture of $357,144 for violating a statute prohibiting transportation of more than $10,000 out of the country was unconstitutional. See id. at 324-26, 334, 118 S.Ct. 2028. The fact that this case deals with civil forfeitures rather than fines is not relevant for our purposes because forfeitures and fines differ only in that a forfeiture is a payment in kind. See id. at 328, 118 S.Ct. 2028.

$34 According to the Court, "[the touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount must bear some relationship to the gravity of the offense .... [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." Id. at 334, 118 S.Ct. 2028. Bojakojian enunciates two guiding principles that courts should consider in determining whether a fine is grossly disproportional: The first is that "judgments about the appropriate punishments for an offense belong in the first instance in the legislature. The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise." Id. at 336, 118 S.Ct. 2028. Since both of these factors "counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity" of an offense, it seems clear that courts should declare the amount of a fine unconstitutional only if "it is grossly disproportional to the gravity of the offense." Id. at 336-37, 118 S.Ct. 2028.

{35 In applying this standard to the present case, we cannot say that the proposed fine is grossly disproportional to Ms. Jensen's coduct. Through an administrative agency, the legislature has set the bounds for appropriate penalties for asbestos violations by giving recommended penalties for different classes of violations and mitigating factors to be considered in special circumstances. - These administrative rules have the same effect as if they were passed by the legislature. See Utah Code Ann. § 63-46a-2(16) (1997).

136 The rules recommend a fine of up to $41,000 for Ms. Jensen's conduct. We believe that since the applicable rules recommend a punishment of up to $41,000, a fine of $23,000 is not excessive. «While we agree with the trial court's concession that $23,000 is "a lot of money," especially considering that Ms. Jensen has little equity in the apartment house, we note that it is not appropriate to compare the fine to the value of Ms. Jensen's equity in the building, but rather to the nature of her conduct in dealing with asbestos in her apartment building. That conduct has exposed tenants and other persons to significant amounts of a- dangerous and carcinogenic substance. We cannot conclude that the amount of the fine is grossly disproportionate to such behavior.

37 Thus, we conclude that the fine is not grossly disproportional to the gravity of the offense and does not violate the Excessive Fines Clause. The fine is within the limits set by the legislature, and is reasonable considering the seriousness of Ms. Jensen's actions.

CONCLUSION

1 38 The trial court properly granted summary judgment to the State because there was no genuine issue of material fact regarding the violations of the law or Ms. Jensen's response to the Notice and Order. Ms. Jensen did not follow proper procedures when she had asbestos removed from her apartment building, for which she was issued a Notice and Order. She did not respond to that Notice, and the Order became final. The amount of the penalty finally imposed ($23,000) is not unconstitutionally excessive, at least in the absence of any showing of inability to pay. Therefore, the decision of the trial court is affirmed.

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

      . Ms. Jensen is responsible for these apartment's notwithstanding the fact that she has been declared mentally disabled and receives 100% disability payments from the Federal Social Security Administration.

      . We rely only on the undisputed facts regarding the delivery, content, and response to the Notice and Order issued to Ms. Jensen. There are other disputed facts in this controversy, such as whether Ms. Jensen instructed the workers to "remove" or "repair" the ceiling. However, summary judgment was granted to the State because of Ms. Jensen's failure to promptly respond to the Notice and Order. All of the facts regarding these events are undisputed.

      . The relevant portion of the statute states: ""In a proceeding for civil enforcement of an agency's order, in addition to any other defenses allowed by law, a defendant may defend on the ground that: ... (c) the defendant has not violated the order; or (d) the defendant violated the order but has subsequently complied." Utah Code Ann. § 63-46b-19(3)(c), (d).

      . Ms. Jensen argues that the appropriate test is outlined in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). However, the Supreme Court specifically stated in Austin that it was not "establish[ing] a multifactor test for determining whether a forfeiture is constitutionally 'excessive.'" Id. at 622-23, 113 S.Ct. 2801.
      The State argues that Hudson v. U.S, 522 U.S. 93, 118 S.Ct. 488, 139 LEd.2d 450 (1997), abrogates Austin and establishes the proper analysis for determining whether a fine is unconstitutionally excessive. We find it difficult to understand how the State can argue that Hudson rejected Austin, given the fact that the Hudson court cited favorably to Austin and used it as support for its holding. See Hudson, 522 U.S. at 102-03, 118 S.Ct. 488. More importantly, Hudson was decided under the Double Jeopardy Clause of the Fifth Amendment, not the Excessive Fines Clause of the Eighth Amendment. The test that it outlines relates to whether a civil fine can be classified as a criminal punishment, which can be important when dealing with Bill of Rights' protections granted to criminal defendants, but does not address when a fine is unconstitutionally excessive under the Eighth Amendment. See Austin, 509 U.S. at 610 n. 6, 113 S.Ct. 2801; see also United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) (applying same test as Hudson outlines and holding that since imposed fine was not "criminal" punishment, Fifth Amendment guarantee against self-incrimination in criminal trials had not been violated).

      . We disagree with Ms. Jensen's assertions that the trial court did not rule on her objection that the fine was excessive. Our reading of the record shows that the trial judge addressed the objections correctly and properly stated the rule governing the excessiveness of fines:
      I don't think the fine is based on what the property value is or how much someone might be able to net after selling it. I don't think that's what the fines are based on .... I think they are based on conduct, failure to comply with certain regulations pertaining to asbestos.