author: ORME, Judge:

text:
    2003 UT App 438
    Warren THURSTON and Frances Thurston, Plaintiffs and Appellants, v. WORKERS COMPENSATION FUND OF UTAH, Community Nursing Services, Heal & Co., and Does 1-10, Defendants and Appellees.
    No. 20020852-CA.
    Court of Appeals of Utah.
    Dec. 26, 2003.

      Alisha Giles, Aric Cramer, and Victoria Cramer, Cramer Cramer & Adaier LLC, Bountiful, for Appellants.
    James R. Black, Black and Associates, Michael P. Zaccheo, Holly B. Platter, Richards Brandt Miller & Nelson, and Gregory J. Sanders, Kipp & Christian, Salt Lake City, for Appellees.
    Before JACKSON, P.J., ORME and THORNE, Jr., JJ.
   OPINION

ORME, Judge:

¶ 1 Warren and Frances Thurston are the parents and lawful heirs of Roger Thur-ston and the plaintiffs in this wrongful death action. The trial court entered summary judgment in favor of all three defendants and dismissed Plaintiffs’ causes of action, based in tort and contract, due to the lack of sufficient evidence that would allow a jury to determine that any negligence of Defendants was the proximate cause of Roger Thurston’s death. We affirm on the merits.

BACKGROUND

¶ 2 Roger Thurston was injured in a mining accident on May 3, 1983, which rendered him severely disabled. The majority of his body was burned, and he eventually had to have both arms amputated and became almost completely deaf. Workers Compensation Fund (WCF), the insurance carrier for Thurston’s employer, paid nearly $2 million in medical and compensation benefits until Thurston’s death in 1998.

¶ 3 After Thurston was discharged following his initial hospitalization, WCF retained Community Nursing Services (CNS) to provide him with home health care. According to the original complaint, twenty-four-hour home nursing care was provided by CNS, and in the second amended complaint, Plaintiffs allege that WCF hired CNS “[o]n or around December 18, 1986.” According to the referring doctor’s orders, CNS home health aides were directed to ensure a safe environment for Thurston and assist him in meal preparation and household management four times a week, for a total of 48 hours per week. Starting on January 29, 1998, the visits of the health aides occurred only when requested by Thurston, and the last visit was on May 14,1998.

¶ 4 Heal & Company (H & C) was retained by WCF to supervise Thurston’s personal health care plan, occasionally assess his needs, and prepare a health care cost projection. H & C’s services were completed in April 1998.

V 5 On June 25, 1998, Thurston was found dead at his home. According to the medical examiner’s report, Thurston was found nude in the driver’s seat of his vehicle with his seat belt fastened, the ignition on, the battery dead, and the garage door closed. The medical examiner found the immediate cause of death to be carbon monoxide intoxication. Due to the unusual circumstances of the death, Thurston’s disabilities, and his blood alcohol level of .22, the medical examiner found the manner of Thurston’s death could not be determined. The examiner opined there was at least a “possibility that the decedent may have been assisted in his suicide or have been placed in the vehicle by another person(s) without his understanding and consent.”

¶ 6 On March 23, 2000, Plaintiffs commenced this action. In their second amended complaint, Plaintiffs asserted several causes of action, both tort and contract, and sought over six million dollars in damages. All of their claims revolve around the general allegation that Thurston committed suicide as a result of the “totally inadequate” care he received from Defendants. Plaintiffs allege in their brief that “Thurston’s health aides frequently neglected their duties and provided [him] with insufficient care, if any at all.” Plaintiffs allege that Thurston was depressed during the last month of his life and that Defendants were negligent in not recommending and/or performing a psychological evaluation. Plaintiffs state that “[t]his negligence, among other acts, by Defendants caused Mr. Thurston’s depression and alcohol/drug problem to become so severe as to cause him to die.” Other specific acts Plaintiffs allege are that CNS employees deprived Thurston of care and were aware of his problems with drugs and alcohol but did not report those problems to their supervisors; that WCF fired CNS upon discovering the inadequate level of care being provided but failed to find a replacement; and that H & C closed Thurston’s file without first contacting him or conducting an evaluation.

¶ 7 The parties became involved in a discovery dispute after CNS and WCF asserted that information sought by Plaintiffs’ interrogatories was protected by the peer review and attorney work-produet privileges, respectively. Plaintiffs responded by filing a motion for in camera review, after which WCF filed a motion for protective order. The trial court denied Plaintiffs’ request for in camera review and stated that “plaintiffs’ Motion is premature in that no Rule 37 Motion to Compel has been filed [pursuant to the Utah Rules of Civil Procedure,] ... the disputed Interrogatories did not seek specific documents, ... [and] the information requested is vague.” The court suggested Plaintiffs refine their interrogatories, meet and confer with opposing counsel if the dispute was not thereby resolved, and file a motion to compel if the meeting did not culminate in a resolution. The court then granted WCF’s motion for protective order “based upon the plaintiffs’ failure to follow appropriate procedural rules.” Instead of pursuing the avenues for recourse left open by the trial court, Plaintiffs sought and were denied leave to take an interlocutory appeal from the trial court’s discovery order.

¶ 8 Over a year later, the trial court granted summary judgment in favor of Defendants because “each and every of plaintiffs’ claims includes, as a necessary element, the allegation that the various defendants’ conduct was a proximate cause of the death of Roger Thurston” and

the only admissible evidence submitted to the court was the Utah State Medical Examiner’s Report, which ... by its own terms, is inconclusive as to the manner of death and does not exclude possible mechanisms such as accident, assisted suicide, suicide, or even homicide. Thus, plaintiffs have provided to the court no admissible evidence establishing either the cause in fact of Roger Thurston’s death, or the causal connection between defendants’ actions and Mr. Thurston’s death.

Plaintiffs appeal the summary judgment against them.

ISSUES AND STANDARDS OF REVIEW

¶ 9 In this appeal, Plaintiffs argue that the trial court erred in granting summary judgment to Defendants. Plaintiffs contend that although the evidence pertaining to the manner of Thurston’s death is inconclusive, all explanations of the cause of death involve the negligence of Defendants, and a jury could find, without speculation, that Defendants proximately caused Thurston’s death.

¶ 10 Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). “ ‘When reviewing a court’s decision to grant summary judgment, we examine the court’s legal conclusions for correctness.’ ” Young v. Salt Lake City Sch. Dist, 2002 UT 64, ¶ 10, 52 P.3d 1230 (citation omitted). “As we analyze the issues, we are mindful that, ‘because negligence cases often require the drawing of inferences from the facts, which is properly done by juries rather than judges, “summary judgment is appropriate in negligence cases only in the clearest instances.” ’ ” Trujillo v. Utah Dep’t of Transp., 1999 UT App 227, ¶ 12, 986 P.2d 752 (quoting Nelson v. Salt Lake City, 919 P.2d 568, 571 (Utah 1996)) (other citation omitted).

¶ 11 Plaintiffs also argue that the trial court erred in denying them motion for in camera review because there is no requirement that a motion be made, pursuant to rule 37 of the Utah Rules of Civil Procedure, prior to in camera review and that the trial court had sufficient information to review the documents claimed to be privileged. “Generally, the trial court is granted broad latitude in handling discovery matters,” R & R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068, 1079 (Utah 1997), “and we will ‘not find abuse of discretion absent an erroneous conclusion of law or where there is no evidentia-ry basis for the trial court’s rulings.’ ” Id. (quoting Askew v. Hardman, 918 P.2d 469, 472 (Utah 1996)).

ANALYSIS

I. Proximate Cause

¶ 12 The Utah Supreme Court has held:

To prevail on a negligence claim, a plaintiff must establish four essential elements: (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, (3) that the breach of duty was the proximate cause of the plaintiffs injury, and (4) that the plaintiff in fact suffered injuries or damages.

Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993). The third element is the key issue in this case. Even if we assume that each Defendant breached a duty to Roger Thur-ston — as CNS expressly conceded for purposes of the summary judgment motion— Plaintiffs still must present sufficient evidence that would allow a jury to conclude that such breach was a proximate cause of Roger Thurston’s death.

¶ 13 Plaintiffs argue that the issue of proximate cause is only properly taken from the jury “where (1) there is no evidence to establish a causal connection, thus leaving causation to jury speculation, or (2) where reasonable persons could not differ on the inferences to be derived from the evidence on proximate causation.” Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 487 (Utah Ct.App.1991), aff'd, 862 P.2d 1342 (Utah 1993). Defendants argue, and the trial court agreed, that although “[pjroximate cause is ordinarily a question of fact for the jury,” Rose v. Provo City, 2003 UT App 77, ¶ 10, 67 P.3d 1017, summary judgment is appropriate in this case because, “where ‘the proximate cause of the injury is left to conjecture, the plaintiff must fail as a matter of law.’ ” Sumsion v. Streator-Smith, Inc., 103 Utah 44, 132 P.2d 680, 683 (1943) (citation omitted).

¶ 14 “ ‘Proximate cause is “that cause which, in the natural and continuous sequence[ ] (unbroken by an efficient intervening cause), produces the injury and without which the result would not have occurred. It is the efficient cause — the one that necessarily sets in operation the factors that accomplish the injury.” ’ ” Mahmood v. Ross, 1999 UT 104, ¶ 22, 990 P.2d 933 (alteration in original) (quoting Harline v. Barker, 912 P.2d 433, 439 (Utah 1996)) (other citation omitted). Thus, to obtain reversal of the adverse summary judgment in this case, Plaintiffs must show that a jury could conclude, without speculation, that Roger Thurston’s death would not have occurred if Defendants had not breached their various duties.

¶ 15 Plaintiffs’ contention that a trial judge ordinarily may not determine the issue of proximate cause is fully supported by Utah case law. For instance, in Harris v. Utah Transit Authority, 671 P.2d 217 (Utah 1983), an injured passenger in an auto accident brought suit against the driver of the jeep in which he was riding and the driver and owner of the bus with which they collided. The Supreme Court held that the trial court erred in instructing the jury that if it found that the driver of the jeep observed or should have observed that the bus had stopped, but failed to avoid hitting the bus, then the jeep driver’s negligence was the “sole proximate cause of the collision.” Id. at 219. This instruction was improper because the plaintiff alleged that the driver of the bus either stopped too quickly, failed to completely exit the lane of traffic, or had faulty brake lights. See id. at 220. The Supreme Court held that the “instruction was erroneous because it failed to submit the proximate cause issue to the jury for determination” in that the driver of the bus may have been contributorily negligent. Id. The Court made the following statement, upon which Plaintiffs rely in the instant case: “Where the evidence is in dispute, including the inferences from the evidence, the issue should be submitted to the jury.” Id.

¶ 16 Notwithstanding the general rule, it is also true that summary judgment may be granted on proximate cause in appropriate circumstances. In Mitchell v. Pearson Enterprises, 697 P.2d 240 (Utah 1985), plaintiffs brought an action against a hotel for the wrongful death of Mitchell, alleging that the hotel in which he was murdered was negligent for failing to provide adequate security for the protection of hotel guests. See id. at 243. The Utah Supreme Court affirmed summary judgment even though the plaintiffs had established material issues of fact with respect to the negligent security measures taken by the defendants. See id. at 245. The Court explained that

the inquiry does not end there. Demonstrating material issues of fact with respect to defendants’ negligence is not suffi-dent to preclude summary judgment if there is no evidence that establishes a direct causal connection between that alleged negligence and the injury. Certainly, ordinarily the issue of proximate cause is a matter to be submitted to the jury for its determination. However, in appropriate circumstances summary judgment may be granted on the issue of proximate cause.
In this case, plaintiffs failed to make out a case based on the specific acts of alleged negligence because there is an absence of proof that the alleged negligence was the proximate cause of Mitchell’s death.

Id. Summary judgment was proper because “there [was] no direct evidence linking Mitchell’s death with the alleged inadequate security measures at the [hotel]” and the plaintiffs therefore did not satisfy their burden of showing causation. Id. at 246. Partly due to the possibility that the decedent invited the assailant into his room, the jury could not be permitted to speculate as to whether proper security measures would have prevented the death. See id.

¶ 17 Similarly, in Clark v. Farmers Insurance Exchange, 893 P.2d 598 (Utah Ct.App.1995), the plaintiff was injured at some point during a series of chain-reaction car accidents. This court affirmed summary judgment due to the “complete absence of evidence on causation.” Id. at 601. This determination was made because no one knew how Clark was injured, the plaintiffs own expert could not “determine the mechanism of plaintiffs injury without speculating or guessing,” and another expert testified that the factual circumstances “[were] so vague and unidentifiable that it is really hard to be precise in coming to any conclusion.” Id.

¶ 18 Plaintiffs in this case contend that although the inferences from the evidence are disputed, “all explanations based on the evidence presented by Plaintiffsf ] as to the manner of Mr. Thurston’s death involve the negligence of the Defendants” and that under Harris, the issue should be submitted to the jury. Plaintiffs attempt to distinguish Mitchell and Clark by arguing “there is substantial evidence of Defendant[s’] negligence,” and “there is no speculation here, as in the Clark case, as to whose negligence caused the death of Mr. Thurston.” However, to avoid summary judgment, Plaintiffs must submit some direct evidence linking the alleged negligence of Defendants to Thurston’s death. See Mitchell, 697 P.2d at 245. Proximate cause is always a critical issue in negligence cases, see Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993), and in this ease, due to the unusual circumstances and lack of direct evidence surrounding Thurston’s death, the jury would need some assistance in making the connection between the conduct of Defendants and the death of Thurston.

¶ 19 Utah Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Plaintiffs submitted an affidavit of two experts, but the affidavit was struck by the trial court because there was no evidence “that either affiant possesses the expert qualifications to express opinions regarding the manner of death of the decedent.” As a general matter, “trial courts ‘are to be given a wide measure of discretion in determining whether a particular witness qualifies as an expert.’ ” State v. Crosby, 927 P.2d 638, 645 (Utah 1996) (citations omitted). In this ease, the affidavit fails, without regard to the qualifications of the witnesses, because the witnesses expressed no opinion as to causation.

¶ 20 Although Plaintiffs’ witnesses express the opinion that the Defendants breached their duties, there is no expert testimony or lay opinion that addresses proximate cause. The affidavit is filled with speculation such as, “I suggest that perhaps Thurston’s demise could have been prevented if such conditions [i.e., anxiety and depression] had been noted.” However, “[t]he general rule regarding the certainty of an expert’s opinion is that the expert may not give an opinion which represents a mere guess, speculation, or conjecture.” State v. Jarrell, 608 P.2d 218, 230 (Utah 1980). Summary judgment was appropriate due to the lack of evidence concerning the proximate cause of Thurston’s death.

¶ 21 Essentially the same analysis applies to Plaintiffs’ breach of contract claims. Plaintiffs allege in their complaint that WCF breached its contract because it “failed to supervise CNS [and H & C] and coordinate care to Mr. Thurston,” and CNS breached its contract “to provide adequate care for Mr. Thurston.” Although Plaintiffs argue that “proximate cause is not an element of a breach of contract claim,” Utah law holds that Plaintiffs can only recover “general damages, which flow naturally from the breach, and consequential damages, which, while not an invariable result of breach, were reasonably foreseeable by the parties at the time the contract was entered into.” Castillo v. Atlanta Cas. Co., 939 P.2d 1204, 1209 (Utah Ct.App.), cert. denied, 945 P.2d 1118 (Utah 1997).

¶ 22 “In contract cases the terminology is different, but there is some similarity of idea [to the concept of proximate cause in tort].” Dan B. Dobbs, Handbook on the Law of Remedies § 3.3, at 149 (West 1973). Professor Corbin, in his treatise on contracts, explains that the terms general and consequential damages are used

to differentiate between those cases in which there are no unusual circumstances, and the sequence of breach and injury, as cause and effect, would be believed to be known to the ordinary man, and other cases in which there are unusual circumstances and there must be evidence that the defendant had reason to know them and to foresee the injury that has occurred.

5 Arthur L. Corbin, Corbin on Contracts § 1011 (interim ed.1964). Corbin noted that “a causal relation [must] be shown to exist between the defendant’s conduct and the harm for which damages are sought.” Id. at § 997. Plaintiffs in this unusual case have offered no evidence demonstrating that the damages complained of flow naturally from any contract breach attributable to Defendants or were reasonably foreseeable to Defendants.

¶ 23 Plaintiffs’ claim is essentially that but for Defendants’ acts, Thurston would not have died. Categorizing some of those acts as contract breaches does not eliminate the need to establish a causal connection. Defendants’ acts, whether breaches of contract or torts, must be causally linked to Plaintiffs’ damages. As Corbin explains,

damages are not recoverable for injury that is too remote from the conduct of the defendant constituting his breach of duty.... [D]amages are not recoverable for losses suffered ... unless the requirements of the law as to. ‘proximate’ causation are satisfied. The form of this rule is the same whether it is being applied in the field of contracts or in the field of torts.

Id. Again, when causation “ ⅛ left to conjecture, the plaintiff must fail as a matter of law.’ ” Mahmood v. Ross, 1999 UT 104, ¶ 22, 990 P.2d 933 (citations omitted).

II. Discovery Dispute

¶ 24 Plaintiffs also argue that the trial court abused its discretion by denying Plaintiffs’ motion for in camera review. The discovery dispute began when CNS objected to two of Plaintiffs’ interrogatories and asserted the peer review privilege and WCF objected to one of Plaintiffs’ interrogatories as being ambiguous and asserted several privileges. Plaintiffs’ response to Defendants’ objections was to seek an in camera review, which the trial court denied.

¶ 25 The trial court found the interrogatories to be vague and suggested Plaintiffs clarify the information sought. The court stated that if clarification did not satisfy Defendants, Plaintiffs were “to make a good faith attempt to resolve the dispute” by complying with Utah Rule of Civil Procedure 37, and if that attempt failed, Plaintiffs could then file a motion to compel. Instead of following the road map so precisely laid out by the trial court, Plaintiffs filed a petition for interlocutory appeal, which was denied. Given the broad latitude the trial court is given in handling discovery matters, see R & R Energies v. Mother Earth Indus., 936 P.2d 1068, 1079 (Utah 1997), and the reasonable means by which the court attempted to resolve the discovery dispute, we see no abuse of discretion.

CONCLUSION

¶ 26 The trial court properly granted Defendants’ motions for summary judgment because Plaintiffs failed to present sufficient evidence on which a jury could properly conclude that the negligence of Defendants was the proximate cause of Thurston’s death. The trial court did not abuse its discretion in handling the discovery dispute, and on the contrary, properly advised the Plaintiffs of reasonable steps to take in order to resolve the dispute.

¶ 27 Affirmed.

¶ 28 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . We have the discretion to dismiss this appeal and assess attorney fees against Plaintiffs due to their failure to comply with Rule 24 of the Utah Rules of Appellate Procedure. Pursuant to rule 24, appellant’s brief must contain a statement of the case that "shall first indicate briefly the nature of the case [and] ... [a] statement of the facts relevant to the issues presented for review shall follow. All statements of fact and references to the proceedings below shall be supported by citations to the record.” Utah R.App. P. 24(a)(7). We may "assume the correctness of the judgment below” when "a party fails to make a concise statement of the facts and citation of the pages in the record where those facts are supported.” Koulis v. Standard Oil Co., 746 P.2d 1182, 1184 (Utah Ct.App.1987). See also Steele v. Board of Review, 845 P.2d 960, 962 (Utah Ct.App.1993). We decline Defendants’ invitations to dismiss, but do note the deficient nature of Plaintiffs’ brief. The statement of the case in Plaintiffs’ opening brief does not paint a very clear picture of the nature of case or the relevant facts of the appeal, and there are essentially no citations to the record on appeal. It is almost as though Plaintiffs assumed we would read the entire record — over 1800 pages — before turning to consider the briefs. On the contrary, we typically read the briefs first and resort to the record only as may prove necessary in resolving particular issues.

      . The requirements and responsibilities of home health aides — now known as certified nursing aides — are stated in section R432-700-22 of the Utah Administrative Code. Although the name and enumerated duties have changed over time, the fundamental nature of the occupation has not. The nursing aides must "be at least 18 years old” and "shall have received a certificate of completion.” Among other things, the aides "[plerform normal household services essential to health care at home"; "[m]ake ... beds”; and "supervise the patient's self-administration of medication[.]” Utah Admin. Code R432-700-22 (2002).

      . Plaintiffs' brief makes reference to criminal litigation involving CNS employees responsible for Thurston's care. The record reveals that two CNS employees pled guilty to criminal charges for fraudulently billing for services purportedly provided to Thurston that were not actually performed.

      . According to the curriculum vitae provided by Plaintiffs’ experts, the highest level of education obtained by the first witness is a Master’s Degree in "Occupational Health/Adult Health, Nurse Practitioner" and the second witness lists "Associate of Science in Nursing.” We note that "formal training or education is not a prerequisite to giving expert opinion, and a witness may qualify as an expert by virtue of his 'experience [or] training.' " Randle v. Allen, 862 P.2d 1329, 1337 (Utah 1993) (alteration in original) (citation omitted). However, the witnesses do not identify any experience or training, much less education, that would enable them to assist a jury in determining the causal relationship between Thur-ston’s death and the conduct of Defendants.

      . Rule 37 provides in relevant part:
      If ... a party fails to answer an interrogatory submitted under Rule 33, ... the discovering party may move for an order compelling an answer.... The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.
      Utah R. Civ. P. 37(a)(2)(B).


source: Caselaw Access Project

license: Public Domain

text:
    2003 UT App 439
    In the MATTER OF S.T.T., a minor. Darryl Thurgood, Appellant, v. Darlene Uzelac, Appellee.
    No. 20030213-CA.
    Court of Appeals of Utah.
    Dec. 26, 2003.

      Darryl Thurgood, Morgan, Appellant Pro Se.
    J. Bruce Reading, Sealey & Reading, Salt Lake City, for Appellee.
    Before Judges BENCH, GREENWOOD, and ORME.
   OPINION

ORME, Judge:

¶ 1 The trial court’s order denying Darryl Thurgood’s motion to vacate a contempt order is the subject of this interlocutory appeal. Darlene Uzelac, Thurgood’s former mother-in-law, filed a motion for order to show cause regarding Thurgood’s failure to comply with an order granting her visitation with his daughter, S.T.T. The trial court found that Thurgood violated the visitation order and sentenced him to sixty days in jail for contempt, with the condition that he could purge the contempt by delivering S.T.T. to Uzelac for visitation every other weekend. We reverse.

BACKGROUND

¶ 2 Darryl and Shauna Thurgood divorced in 1994, and are the biological parents of S.T.T. Shauna Thurgood was S.T.T.’s custodial parent up to the time of her death on April 28, 2000, at which time Darlene Uzelac, Shauna’s mother, took charge of S.T.T. Uze-lac filed a petition requesting that the court appoint her as S.T.T.’s guardian and conservator. When Darryl Thurgood learned of his ex-wife’s death by reading her obituary in the newspaper, he also filed for appointment as guardian and conservator.

¶3 Although the trial court granted Uze-lac’s temporary restraining order on June 16, 2000, giving her immediate custody of S.T.T., the court awarded temporary custody to Thurgood shortly thereafter. The court stated in a September minute entry that Thur-good, as “the natural father ... has absolute parental rights.” In an order on February 7, 2001, the court found that “the rebuttable presumption in favor of a biological parent being awarded custody of and guardianship of a minor child has not been rebutted in this case. Therefore, the father of the minor child, Mr. Thurgood, [as] the sole surviving parent, is the custodian and legal guardian of the minor.” In the same order, the trial court found that “there ought to be some future visitation between Ms. Uzelac ... and the minor child ... at [Thurgood’s] approval.”

¶4 After the parties failed to follow the court’s recommendation “to cooperate to see that the child visits appropriately with her grandmother,” Uzelac filed an amended petition seeking visitation. In April 2002, Uzelac filed a motion seeking a temporary visitation order. In a June minute entry, the court granted the grandparents “supervised visitation for [two] hours the first visit, four hours the second visit, [then] the third visit will be unsupervised for six [hours] and the fourth visit will be a weekend.” Thurgood responded by taking his daughter to Australia for four weeks. Upon his return, he discovered that his attorney had withdrawn and that, in August, the court had entered an order by which the grandparents were granted visitation of one weekend per month, which was to continue until trial.

¶ 5 In October 2002, Uzelac filed a motion for order to show cause concerning Thur-good’s ongoing violation of the August order allowing visitation. In a minute entry on January 9, 2003, the trial court indicated that Thurgood was in contempt, and he was sentenced to sixty days in jail, which he could purge by delivering S.T.T. every other weekend to Uzelac for visitation. Thurgood filed a motion to vacate pursuant to rule 60(b) of the Utah Rules of Civil Procedure. The trial court then signed an order on January 31, 2003, by which the court sentenced Thurgood to sixty days in jail for his willful violation of the August order and indicated that such sentence would be stayed “upon the condition that [Thurgood] purge himself of the contempt by delivering the child to the residence of the Uzelacs ... on alternating Fridays.... Such visitation shall continue during the pendency of this matter.” Thurgood’s motion to vacate the order was subsequently denied, and this appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 6 Although Thurgood purports to raise several issues in his rule 60(b) motion and in his brief on appeal, the only issue properly before this court is the propriety of the trial court’s denial of Thurgood’s motion to vacate the contempt order. “ ‘Appellate review of Rule 60(b) orders must be narrowed in this manner lest Rule 60(b) become a substitute for timely appeals.’ ” Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 19, 2 P.3d 451 (quoting 12 James Wm. Moore et al., Moore’s Federal Practice § 60.68[3] (3d ed.1999)) (emphasis omitted). “ ‘ “A trial court has discretion in determining whether a movant has shown [Rule 60(b) grounds], and this Court will reverse the trial court’s ruling only when there has been an abuse of discretion.” ’ ” Id. at ¶ 9 (alteration in original) (quoting Ostler v. Buhler, 957 P.2d 205, 206 (Utah 1998)) (other citation omitted).

¶ 7 “ ‘The decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action “is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” ’ ” Barton v. Barton, 2001 UT App 199,¶ 9, 29 P.3d 13 (quoting Marsh v. Marsh, 1999 UT App 14,¶ 8, 973 P.2d 988, cert. denied, 982 P.2d 89 (1999)) (other citation omitted). “We also review the sanctions imposed for contempt for abuse of discretion.” Id.

ANALYSIS

¶ 8 Rule 60(b) of the Utah Rules of Civil Procedure states in part that “the [trial] court may in the furtherance of justice relieve a party ... from a final judgment, order, or proceeding” for enumerated reasons including excusable neglect, discovery of new evidence, fraud of an adverse party, void judgment, satisfied judgment, or “any other reason justifying relief from the operation of the judgment.” Utah R. Civ. P. 60(b). The specific basis of Thurgood’s motion under rule 60(b) for relief from the contempt order is somewhat unclear. Instead of focusing on one of the reasons explicitly listed in rule 60(b) for obtaining relief from the order, Thurgood’s memorandum in support of his 60(b) motion and his appellate brief mainly argue the merits of the trial court’s orders dating back to February 7, 2001. The trial court denied Thurgood’s motion and stated that “[t]he argument in support of the motion centers on the merits of the petition, which are properly and more fully considered at the trial. [Thurgood] has failed to identify any applicable basis contained in Rule 60(b)[of the Utah Rules of Civil Procedure] that justifies the relief sought.”

¶ 9 However, the catchall provision of rule 60(b)(6) gives trial courts discretion to relieve a party from an order for “any other reason justifying relief from the operation of the judgment.” Utah R. Civ. P. 60(b)(6). In his 60(b) motion, Thurgood argued, among other things, that the visitation component of the contempt order had contained no specific finding that visitation was in the child’s best interest and, in essence, had the effect of punishing her. In his brief, Thurgood makes the additional argument — which should have been obvious to the trial court — that the sanction of sixty days in jail exceeds the statutory maximum of thirty days. See Utah Code Ami. § 78-32-10 (2002). Thus, the “reason justifying relief from the operation of the judgment,” Utah R. Civ. P. 60(b)(6), is that the contempt order improperly adjusted visitation to encourage the purging of a contempt sanction that was unlawful because it was in excess of the statutory maximum.

¶ 10 The trial court’s contempt order provides in relevant part:

The Court finds that [Thurgood] has willfully violated the Order of the Court after having understood that Order, in that he has not made available the child for visitation with petitioner. Based upon this finding, the Court orders that [Thurgood] be sentenced to sixty (60) days in jail for his contempt.
The Court will stay the imposition of this sentence upon the condition that [Thur-good] purge himself of the contempt by delivering the child to the residence of the Uzelacs between 6:00 and 6:30 p.m. on alternating Fridays commencing with the 10th of January, 2003. The child will remain [in] the Petitioner’s care and custody until Sunday and will be picked up by [Thurgood] between 6:00 and 7:00 p.m. There [shall] be no discussion between the maternal grandparents and [Thurgood] during the transfer of the child. Such visitation shall continue during the pen-dency of this matter.

¶ 11 The trial court’s authority to grant visitation rights to grandparents, and sanction a parent for noncompliance, is founded on Utah Code section 30-5-2, which previously allowed the court to “grant grandparents reasonable rights of visitation, if it is in the best interest of the grandchildren, in cases where a grandparent’s child has died or has become a noncustodial parent through divorce or legal separation.” Utah Code Ann. § 30-5-2(2) (Supp.2000). This section was amended in 2002 to add a “rebuttable presumption that a parent’s decision with regard to grandparent visitation is in the grandchild’s best interests,” and such presumption may be overridden based on consideration of factors the court deems relevant. Utah Code Ann. § 30-5-2(2) (Supp. 2003).

¶ 12 Thurgood argues that under either version, the court erred in granting visitation because no evidentiary hearing was held to determine the best interests of his daughter. However, in this interlocutory appeal, Thur-good cannot “use Rule 60(b) as a ‘back door’ to a direct appeal” of issues outside the scope of the contempt order. Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110,¶ 23, 2 P.3d 451.

V13 Both the prior and amended versions of the statute contain a provision by which “[g]randparents may petition the court as provided in Section 78-32-12.2 to remedy a parent’s wrongful noncompliance with a visitation order.” Utah Code Ann. § 30-5-2(5) (Supp.2000), § 30-5-2(6) (Supp.2003). Section 78-32-12.2 defines the available sanctions and provides, inter alia, that “[u]pon a finding of substantial noncompliance, the court shall order ... make up parent-time for the aggrieved parent and child ... [and] may order ... a fíne or jail sentence or other appropriate sanctions as provided under contempt of court in Section 78-32-10.” Utah Code Ann. § 78-32-12.2(3)(b),(4)(c) (2002). As applicable in this case, “ ‘[substantial noncompliance’ means conduct which ... substantially interferes with a court-ordered parent-time schedule,” id. § 78-32-12.2(l)(d), and “ ‘[m]ake up parent-time’ means parent-time which is ... of the same type and duration of parent-time as that which was denied.” Id. § 78-32-12.2(l)(a)(i). Section 78-32-10 provides in part that “[i]f the court finds the person is guilty of the contempt, the court may ... order the person incarcerated in the county jail not exceeding 30 days.” Id. § 78-32-10.

¶ 14 We hold that the trial court abused its discretion by sentencing Thurgood to sixty days in jail for contempt as this clearly exceeds the statutory maximum of thirty days. Furthermore, the court abused its discretion by making the avoidance of the jail sentence conditional on indefinitely doubled visitation. The statute authorizes “make up parent-time” in the same amount as that denied. See id. § 78-32-12.2(l)(a). Since monthly visitation was ordered on August 23, 2002, and the court’s minute entry finding Thur-good in contempt was entered on January 9, 2003, there were at most only five missed visits to be made up. However, the only way Thurgood could purge his contempt was to deliver his daughter to her grandparents every other weekend from January 10, 2003, to the time of trial, which was initially set for August 19, 2003, and was later continued indefinitely. Thus, visitation was not increased only by the same time as was denied but rather was doubled indefinitely. The trial court’s action was beyond the authorization of the statute and was thus a clear abuse of discretion.

CONCLUSION

¶ 15 The trial court abused its discretion by entering sanctions for contempt that were in excess of those authorized by statute. The court erred by sentencing Thurgood to sixty days in jail for contempt, and by increasing visitation in excess of the time necessary to make up for Thurgood’s past noncompliance. We therefore reverse the trial court’s denial of Thurgood’s motion to vacate the contempt order and remand for such proceedings as may now be appropriate.

¶ 16 WE CONCUR: RUSSELL W. BENCH and PAMELA T. GREENWOOD, Judges.

      . This order was entered by Judge Fratto. Some earlier determinations in this matter, referred to in this opinion, were made by other judges.

      . Thurgood argues in his brief that the trial court erred in granting visitation to Mr. Uzelac, as he was not a parly to the litigation. The Uzelacs were evidently divorced at the time the original petition was filed, but they subsequently remarried. Although there may presently be no practical consequence in granting visitation to "the grandparents,” we note that such an order could become problematic in the event that the Uzelacs divorce again or Mrs. Uzelac dies. In such an event, Mr. Uzelac would not have established an independent right to visitation, yet might assert that right given the phraseology of the order. It is surely more consistent with the pleadings before the court to grant any grandparent visitation ultimately ordered herein solely to Mrs. Uzelac.

      . "The 2002 amendment, effective May 6, 2002, rewrote the section." Amendment notes, Utah Code Ann. § 30-5-2(Supp.2003). See Utah Husband and Wife Act, ch. 85, § 30-5-2(2), 2002 Utah Laws 298. For the convenience of the reader, and because section 30-5-2 has not subsequently been amended, we cite to the current version of the statute when referring to the statute as amended in 2002.

      . Although the term "parent-time” does not obviously include grandparent-time, future visitation in the amount of time previously denied would remedy past noncompliance with a visitation order and would be an appropriate remedy in addressing such noncompliance even absent the statutory directive. The term "parent-time” first appeared in a 2001 amendment to the divorce statute and replaced references to parental visitation. See Utah Code Ann. § 30-3-5 (Supp.2003) & accompanying amendment notes (explaining that the 2001 amendment, among other things, "substituted 'parent-time rights of parents and visitation rights of grandparents’ for 'visitation rights of parents [and] grandparents' ”). Less precisely, the 2001 amendment to the contempt statute "substituted 'parent-time' for 'visitation' throughout the section.” Amendment notes, Utah Code Ann. § 78-32-12.2 (2002). Furthermore, the statute that grants grandparents visitation rights specifically refers grandparents to section 78-32-12.2 "to remedy a parent's wrongful noncompliance with a visitation order.” Utah Code Ann. § 30-5-2(6) (1998 & Supp.2003). Thus, although the terms have changed, the concept of "visitation” and the means of remedying noncompliance have remained the same.

      . We note that pursuant to section 78-32-12.2, there could be situations where it would be proper for the trial court to order make up time "at twice the amount of time previously wrongfully denied.” Utah Code Ann. § 78-32-12.2(6)(b) (2002). However, it would still be a fixed amount of time and in no event should visitation be indefinitely doubled as a component of sanctioning contempt.


author: PER CURIAM:

text:
    2003 UT App 448
    STATE of Utah, Plaintiff and Appellee, v. Jonathan HAWKE, Defendant and Appellant.
    No. 20030676-CA.
    Court of Appeals of Utah.
    Dec. 26, 2003.
    Jonathan Hawke, Draper, Appellant Pro Se.
    Mark L. Shurtleff, Atty. Gen., and Laura B. Dupaix, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BILLINGS, Associate P.J., BENCH and ORME, JJ.
   OPINION

PER CURIAM:

¶ 1 This appeal is before the court on the State’s motion to remand the case to determine Appellant’s indigence and to appoint counsel.

¶ 2 Appellant Jonathan Hawke was represented by counsel in the district court, where he pleaded guilty to two counts of sexual exploitation of a minor, a second degree felony. After denial of a timely motion to withdraw the guilty pleas, Hawke filed a pro se notice of appeal. On the State’s motion, we remanded the appeal to the Third District Court, Tooele Department, “for a determination as to Appellant’s indigence and, if so, to appoint counsel or accept defendant’s waiver of counsel.” Following a November 3, 2003 hearing, the district court found that Hawke is indigent, but stated that “there is no counsel available to represent the defendant because of conflicts.” The court also stated that the Court of Appeals may need to appoint counsel.

¶ 3 The Indigent Defense Act contains the requirements and procedures for the provision of counsel for indigent defendants in criminal cases. See Utah Code Ann. § 77-32-101 to -704 (1999 & Supp.2003). Utah Code Annotated section 77-32-301 (1999) requires “[e]ach county, city, and town [to] provide for the defense of an indigent in criminal cases in the courts,” including, but not limited to, providing counsel to “proceed with a first appeal of right.” Id. § 77-32-301(5). “Upon making a finding of indigence, the court shall enter the findings on the record and enter an order assigning defense counsel to represent the defendant in the case.” Utah Code Ann. § 77-32-202(4) (Supp.2003). A county or municipality shall provide counsel and other defense resources either by contracting with “a legal aid association” or “one or more defense associations or attorneys and qualified defense resources” or by “authoriz[ing] the court to provide the services prescribed by [the Indigent Defense Act] by assigning a qualified attorney in each case.” Utah Code Ann. § 77-32-306(1) (Supp.2003).

¶4 When a county or municipality has entered into a contract for indigent defense, “the contracted legal aid association or attorneys ... are the exclusive source from which the legal defense may be provided, unless the court finds a compelling reason for the appointment of noncontracting attorneys ... in which case the judge shall state the compelling reason on the record.” Utah Code Ann. § 77-32-306(2) (emphasis added). Section 302 describes the hearing procedure for appointment of a noncontracting attorney, by stating:

If the court considers the assignment of a noncontracting attorney or defense resource to provide legal services to an indigent defendant despite the existence of an indigent legal services contract and the court has a copy or notice of the contract, before the court may make the assignment, it shall:
(i) set the matter for a hearing;
(ii) give proper notice of the hearing to the attorney of the responsible county or municipality; and
(iii) make findings that there is a compelling reason to appoint a noncontract-ing attorney or defense resource.

Utah Code Ann. § 77-32-302(2)(d) (Supp. 2003). Section 303 further clarifies the procedure for appointment of a noncontracting attorney, stating:

If a county or municipality has contracted for, or otherwise made arrangements for, the legal defense of indigents, including a competent attorney and defense resources, the court may not appoint a noncontracting attorney or resource either under this part, Section 21-5-14.5 or Rule 15, Utah Rules of Criminal Procedure, unless the court:
(1) conducts a hearing with proper notice to the responsible entity to consider the authorization or designation of a noncontract attorney or resource; and (2) makes a finding that there is a compelling reason to authorize or designate a noncontracting attorney or resources for the indigent defendant.

Utah Code Ann. § 77-32-303 (Supp.2003).

¶ 5 If a court appoints a noncontracting attorney or association to provide indigent legal services, “[t]he county or municipality shall pay reasonable compensation to any attorney assigned by the court under Subsection 77-32-306 at the conclusion of the representation or any segment of the representation.” Id. § 77-32-304.5(2)(a) (Supp.2003). The method for determination of compensation is governed by the detailed provisions of Utah Code Annotated section 77-32-304.5(2) (Supp.2003).

¶ 6 This court’s order on remand directed the district court to determine indigency and to appoint counsel if Hawke was determined to be indigent and did not waive representation by counsel. The directions on remand were not completely followed. We cannot determine from the district court’s minute entry whether the court considered appointment of noncontracting counsel. Because the Indigent Defense Act sets forth the procedures for appointment of noncontracting counsel, the district court should have utilized those procedures after determining that Hawke is indigent and entitled to counsel, but could not be represented by attorneys who have contracted with Tooele County for indigent defense. Assuming that the district court has determined that no attorneys who have contracted with Tooele County for indigent defense, including any “conflict counsel,” may represent Hawke, the court should comply with the procedures set forth in section 77-32-302, section 77-32-303, and section 77-32-306, allowing appointment of a noncontracting attorney. The district court is not limited to attorneys residing in Tooele County. It will then be the responsibility of Tooele County to compensate any appointed noncontracting attorney in accordance with section 77-32-304.5(2).

¶ 7 The appeal is temporarily remanded to the district court for proceedings consistent with this decision and our order of September 16, 2003.

      . Utah Code Ann. § 21-5-14.5 (1998), now renumbered as Utah Code Annotated section 78-46-33 (2002), and rule 15 of the Utah Rules of Criminal Procedure primarily pertain to appointment and compensation of expert witnesses.

      . In a letter to this court dated November 7, 2003, Hawke states that the district court could not assign counsel due to conflicts "with the attorneys that belong to the county’s public defenders office.”


author: BILLINGS, Associate Presiding Judge:

text:
    2003 UT App 444
    Davis COUNTY, Plaintiff and Appellant, v. James M. JENSEN and Progressive Northwestern Insurance Co., Defendants and Appellees.
    No. 20030174-CA.
    Court of Appeals of Utah.
    Dec. 26, 2003.
    Trent J. Waddoups, Carr & Waddoups, Salt Lake City, for Appellant.
    Kristin A. Van Orman, James D. Franck-owiak, and Joseph J. Joyce, Strong & Hanni, Salt Lake City, for Appellees.
    Before JACKSON, P.J., BILLINGS, Associate Presiding Judge, and GREENWOOD, J.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 Davis County appeals the district court’s order granting summary judgment in favor of Progressive Northwestern Insurance Company. We affirm.

BACKGROUND

¶2 On June 20, 1998, James Jensen led police on a high-speed automobile chase. During the pursuit, Jensen, driving southbound on Interstate 15, attempted to cross the median into oncoming northbound traffic. Worried for the safety of other drivers, Sergeant Gleave of the Davis County Sheriffs Office maneuvered his cruiser along the driver-side of Jensen’s vehicle, effectively blocking Jensen’s intended path into the opposing traffic flow. Unfazed, Jensen continued toward the median until his vehicle impacted the passenger side of Sergeant Gleave’s cruiser. Jensen’s attempts to push the heavier cruiser out of the way proved unsuccessful, and Sergeant Gleave began pushing Jensen’s car toward the right shoulder of the southbound lane. At this point, Jensen abruptly disengaged. The sudden lack of resistance caused Sergeant Gleave to lose control of his cruiser and collide with a semitrailer truck. The cruiser was deemed a total loss by insurance adjusters. Jensen later pleaded guilty to charges of aggravated assault, criminal mischief, and failure to stop at the command of a police officer.

¶ 3 At the time of the incident, Jensen was covered as a permissive user under an automobile insurance policy (the Policy) with Progressive Northwestern Insurance Company (Progressive). Davis County (the County) filed a claim with Progressive for damages to the police cruiser. Progressive determined that Jensen’s conduct was intentional, not accidental, and therefore was not covered under the Policy.

¶ 4 After Progressive denied the claim, the County filed a negligence suit against Jensen and Progressive seeking to recover damages. Because Progressive believed Jensen’s intentional criminal conduct excluded him from coverage under the Policy, Progressive did not provide a defense for Jensen. When Jensen failed to provide his own defense, the trial court entered a default judgment against him in the amount of $17,209.88.

¶ 5 Thereafter, both Progressive and the County filed motions for summary judgment. Progressive argued it was entitled to summary judgment because the County had no standing to sue Progressive and because Jensen’s intentional conduct was outside the scope of coverage, relieving Progressive of any duty to indemnify or defend Jensen. The County argued it was entitled to judgment as a matter of law because the default judgment against Jensen conclusively established the factual allegations of negligence in the complaint, leaving Jensen’s conduct squarely within the scope of coverage. Hence, the County argued that both the fact and the amount of Progressive’s liability were conclusively established. The trial court denied the County’s motion for summary judgment and granted Progressive’s motion for summary judgment after concluding that Progressive had no duty to indemnify or defend because Jensen’s conduct placed him outside the scope of coverage under the Policy. The County appeals.

ISSUE AND STANDARD OF REVIEW

¶ 6 The County argues the district court erred in granting summary judgment to Progressive and denying the County judgment as a matter of law. “Summary judgment is proper when there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Prince v. Bear River Mut. Ins. Co., 2002 UT 68,¶ 14, 56 P.3d 524 (quotations and citations omitted). “When reviewing the trial court’s order granting [Progressive’s] summary judgment motion, we view the facts and reasonable factual inferences in the light most favorable to [the County], the nonmoving party.” Id. We review the order granting summary judgment for correctness, according no deference to the district court’s legal conclusions. Id.

ANALYSIS

¶ 7 The County argues the trial court erred in granting Progressive judgment as a matter of law. We disagree but affirm on the alternate ground of standing.

¶ 8 Progressive argued below and now contends on appeal that the County lacks standing to bring this direct action against Progressive. We agree with Progressive.

¶ 9 The County relies on State Farm Mutual Automobile Insurance Co. v. Northwestern National Insurance Co., 912 P.2d 983 (Utah 1996), for the proposition that one insurer may bring a subrogation action against a second insurer. In State Farm Mutual Automobile Insurance Co., our supreme court noted:

Utah law clearly recognizes an insurer’s right to bring a subrogation action on behalf of its insured against a tortfeasor.... More significantly, we have extended this principle to an action by an insurer against a second insurance company which is primarily liable to defend or pay any claims on behalf of its insured but which has denied coverage.

Id. at 985. We conclude the County has read this language too broadly.

¶ 10 The plaintiff in State Farm Mutual Automobile Insurance Co. filed suit following an automobile accident involving Dalton, an employee of Dave’s Texaco. See id. at 984. The accident resulted in personal injuries to the plaintiff and property damage to both the plaintiffs vehicle and the one Dalton was chiving. See id. At the time of the accident, Dalton was driving a vehicle he had borrowed from Puffer, his supervisor at Dave’s Texaco. See id. Puffer carried an automobile insurance policy with State Farm, and Dalton was covered under that policy as a permissive user of Puffer’s vehicle. See id. ' Northwestern National insured Dave’s Texaco and, due to his status as an employee, Dalton was also covered under that policy. See id. Hence, Dalton’s claims of coverage under both policies arose from contractual relationships between the insurers and the insured. See id. For reasons immaterial here, both State Farm and Northwestern denied Dalton coverage. See id. at 984-85. However, State Farm, acting to protect its insured, ultimately investigated and settled all claims. See id. at 985. Thereafter, State Farm sued Northwestern on the equitable grounds of subrogation, indemnification, and unjust enrichment, arguing Northwestern was obligated to pay the claims. See id. On these facts, the supreme court could “find no merit in Northwestern’s argument that State Farm should be foreclosed from bringing a subro-gation action because State Farm disputed coverage under its policy with Puffer.” Id. at 986-87. Thus, the supreme court held that where two insurers, each having separate contractual obligations to cover the same tortfeasor, are in disagreement as to which insurer is primarily liable, the insurer that pays the claim to protect its insured may bring an equitable subrogation action against the second insurer. See id.; see also National Farmers Union Prop. & Cas. Co. v. Farmers Ins. Group, 14 Utah 2d 89, 377 P.2d 786, 787 (1963) (allowing one insurer to bring a subrogation action against a second insurer to determine primary liability in an accident, caused by a person that both companies had contracted to insure). The County’s position finds no support in this holding because the County had no contractual relationship with Progressive or with Jensen and, therefore, no equitable right to subrogation against Progressive under the Policy.

¶ 11 Other Utah case law is in direct opposition to the County’s claim of standing. For example, in Campbell v. Stagg,, 596 P.2d 1037 (Utah 1979), our supreme court held that an injured party has no direct cause of action in contract against a tortfeasor’s insurer because the insurer’s liability to the injured party “arises only secondarily, through its contractual arrangement with the [tortfea-sor].” Id. at 1039. In the context of an action for declaratory judgment, the supreme court in Utah Farm Bureau Insurance Co. v. Chugg, 6 Utah 2d 399, 315 P.2d 277 (1957), held that “one who claims to be damaged by the [tortious] act of another” is not “a proper party to an action by the insurer of the [tortfeasor] under a public liability policy, whereby a declaratory judgment is sought declaring the legal effects of the terms of such policy.” Id at 281. In fact, the supreme court has “consistently held ... that [a tortfeasor’s] insurer [may] not be joined with the tort-feasor unless [such was] required by statute.” Christensen v. Peterson, 25 Utah 2d 411, 483 P.2d 447, 448 (1971).

¶ 12 Some jurisdictions have adopted so-called “direct action statutes,” allowing an injured party to bring direct action against a tortfeasor’s insurer. See 7 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d. § 104:13 (1997) (citing Dewalt v. State Farm Mut. Auto. Ins. Co., 99 F.2d 846 (8th Cir.1938); Jackson v. State Farm Mut. Auto. Ins. Co., 23 So.2d 765 (La.Ct.App.1945), rev’d on other grounds, 211 La. 19, 29 So.2d 177 (1946); Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 278 N.Y.S.2d 793, 225 N.E.2d 503 (1967); Fehr v. General Accident Fire & Life Assurance Corp., 246 Wis. 228, 16 N.W.2d 787 (1944)).

¶ 13 However, Utah has not adopted this rule. Instead, Utah adheres to the “general rule, [that] in the absence of a contractual provision or a statute or ordinance to the contrary, ... the absence of privity of contract between the [injured party] and the [tortfeasor’s] insurer bars a direct action by the [injured party] against the [insurer]” in automobile insurance cases. Id. § 104:2 (footnotes omitted); see also Campbell, 596 P.2d at 1039 (“In Utah, a plaintiff must direct his action against the actual tortfeasor, not the insurer.”).

¶ 14 At least two policy justifications are provided in Utah case law for not adopting a direct action rule in Utah. First, “the presence of an insurer as a party defendant [with the tortfeasor] might have the same effect upon the jury as ... a liability policy,” Christensen, 483 P.2d at 448, namely that the jury may improperly employ considerations of insurance, as evidenced by the presence of an insurer in the litigation, to decide the merits of a case. See Young v. Barney, 20 Utah 2d 108, 433 P.2d 846, 848 (1967) (“The understanding has always been that it [i]s prejudicial error to deliberately inject insurance [information] into ... a trial.”). Second, “[i]t is not the policy of the law to encourage litigation.” Ammerman v. Farmers Ins. Exch., 19 Utah 2d 261, 430 P.2d 576, 578 (1967).

¶ 15 Further, the County lacks standing to bring an action in tort against Progressive because Progressive “has committed no act making it liable in tort to [the County].” Campbell, 596 P.2d at 1039. Indeed, the County does not allege that Progressive committed tortious acts against the County. The County’s only cause of action in tort lies against Jensen, see id., and the County has already obtained a default judgment against him.

¶ 16 The County’s claim of standing as a third-party beneficiary is also unavailing. The facts of the cases upon which the County relies for support of its claimed right to recover as a third-party beneficiary are distinguishable from the facts of this case, and neither holding controls. In Ellis v. Gilbert, 19 Utah 2d 189, 429 P.2d 39 (1967), the supreme court granted an interlocutory appeal to review a ruling of the trial court “that the defendant in a personal injury action must answer in discovery whether she is insured, and if so, the name of the insurer and the amount of coverage.” Id. at 39^10. The court held that because the injured party is

in effect a third-party beneficiary of the insurance of a wrongdoer who injures him, ... [i]t is only reasonable that the plaintiff should have some means of discovering whether a policy exists, and what its provisions are so he can know whether covenants upon which his rights may depend are being complied with.

Id. at 41. A plain reading shows that the court’s holding applies only to the narrow issue of cooperation in discovery. The court did not hold, as the County asserts here, that injured third parties have a right of direct action against the tortfeasor’s insurer.

¶ 17 In Peterson v. Western Casualty & Surety Co., 19 Utah 2d 26, 425 P.2d 769 (1967), the insurance policy in question “contained the usual provision that a judgment creditor of the insured may bring” suit directly against the tortfeasor’s insurer. Id. at 770. Hence, the Peterson holding, which allowed a plaintiff to recover directly from the tortfeasor’s insurer, came about because the insurer consented to such action in the language of the policy. See id. at 770, 772.

¶ 18 That the County may never collect on its judgment against Jensen is unfortunate; but until the Utah Legislature sees fit to adopt a rule allowing direct action by an injured party against a tortfeasor’s insurer, the County has no right of action against Progressive directly, and no means to impel Jensen to obtain a settlement from Progressive in order to satisfy its judgment. See Ammerman, 430 P.2d at 578 (“The privilege of deciding whether to [sue one’s insurer] should be up to [the tortfeasor] and not up to some third party to inject his interest into the matter.”).

CONCLUSION

¶ 19 The County cannot bring a cause of action in contract directly against Progressive. Also, the County has no means to force Jensen to bring a claim against his insurer. Finally, the County has no tort claim against Progressive because Progressive has committed no tortious act against the County. Accordingly, we hold that the County lacks standing to bring its claims against Progressive and, therefore, we affirm the lower court’s grant of summary judgement for Progressive and its denial of summary judgment for the County.

¶ 20 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . The County’s brief indicates that Utah Association of Counties Insurance Mutual is the County's insurer and the real party in interest in this case.

      . The Policy defined an "accident” as "a sudden, unexpected, and unintended occurrence.” The Policy also contained an intentional acts exclusion clause that excluded coverage for damages caused “by an intentional act of an insured person[.]”

      ."It is well settled that an appellate court may affirm the judgment appealed from 'if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action....’ ” Bailey v.

        Boyles, 2002 UT 58,¶ 10, 52 P.3d 1158 (citation omitted).

      . In a prior motion for summary judgment, which the trial court denied, Progressive argued (thereby preserving the argument for appeal) that the County lacked standing to bring its claims against Progressive.

      . The supreme court cautioned that
      before a court will grant relief, a party must meet the following requirements: (1) There must be a debt or obligation for which the subrogee was not primarily liable; (2) the sub-rogee must have made payment to protect his own rights or interest; (3) the subrogee must not have acted merely as a volunteer; and (4) the entire debt must have been paid.... Furthermore, subrogation must not work any injustice to the rights of others.

        State Farm Mut. Auto. Ins. Co. v. Northwestern Nat’l Ins. Co., 912 P.2d 983, 986 (Utah 1996).

      . The supreme court in Campbell v. Stagg, 596 P.2d 1037 (Utah 1979), cited the Texas case, Pattison v. Highway Insurance Underwriters, 278 S.W.2d 207 (Tex.Civ.App.1955), as an example of the kind of tort a tortfeasor’s insurer might commit against the injured party so as to create a direct action in tort by the injured party against the insurer. See id. at 1040. There, "plaintiffs alleged the insurer's agents fraudulently misrepresented the amount of coverage provided in the defendant's insurance policy, [thereby] inducing plaintiffs to sign a release agreement.” Id. The County has not alleged any such tort by Progressive in this case.

      . Because our holding that the County lacks standing to bring its claims against Progressive is dispositive, we do not reach the other issues raised by the County on appeal.